Filed 5/10/17 P. v. Mesinas CA3
On remand
NOT TO BE PUBLISHED


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS GUADALUPE MESINAS,

Defendant and Appellant.
C074781

(Super. Ct. No. 12F04768)





This case returns to us from our Supreme Court for reconsideration in light of People v. White (2017) 2 Cal.5th 349 (White).
Defendant Carlos Mesinas forcibly raped L.M., the 14-year-old, severely disabled daughter of his longtime live-in girlfriend, with whom he had two children. He videotaped the assault on his cell phone and L.M.’s mother discovered the video. A jury found him guilty of forcible rape of a minor (Pen. Code, §§ 261, subd. (a)(2); 264, subd. (c)(2)), rape of a person incapable of giving consent (§ 261, subd. (a)(1)), and a lewd act on a child of 14 or 15 years (§ 288, subd. (c)(1)). Sentenced to 11 years in prison, defendant appeals.
Defendant first contends his conviction for rape of a person incapable of giving consent must be reversed because multiple counts of rape under section 261 cannot be based on a single act of intercourse. This contention is answered by White, supra, 2 Cal.4th 349, which held the various subdivisions of section 261 define separate offenses and while a defendant may not be punished for more than one based on the same act, he may be convicted of each separate offense.
Defendant further contends it was error to admit his statement to the police because it was made without a valid waiver of his Miranda rights, and because he was given an invalid Miranda advisement. He adds it was error to admit photographs of his altered tattoo and to instruct with CALCRIM No. 371 on consciousness of guilt, and error to admit evidence of his sex video with another woman. Finally, he contends the trial court erred in calculating credits, and the People concede the error.
We find merit only in the last contention. We accept the People’s concession on credits and award defendant 472 days of presentence conduct credit. We will affirm the judgment as modified.
FACTS
Defendant’s Relationship with C.M. and L.M.
C.M. had a seven-year relationship with defendant. They were not married, but they had two daughters together. C.M. also has a daughter, L.M., and a son who lives with his father. L.M. has severe cerebral palsy, microcephaly (small brain), and scoliosis. She is quadriplegic and cannot walk, talk, or use the toilet. She is fed through a feeding tube. She has severe developmental delay and limited brain functioning.
Prior to April 2012, defendant and C.M. had a good relationship; she described him as “good man” who supported them. Defendant had several jobs, including cooking and cleaning at a restaurant and running a taco stand. In July 2012, he worked five jobs, from afternoon until early in the morning. He was always affectionate with the girls, including L.M.
In early April, defendant told C.M. he was seeing another woman. C.M. learned that woman was Theresa Imrie. Defendant continued to live with C.M., but sometimes he stayed elsewhere. C.M. wanted to leave the relationship, but defendant threatened to take their two girls if she did. C.M. noticed changes in defendant; his clothes and hair were different and he began to drink. Defendant did not act the same with C.M. or L.M. Many times over the next three months defendant told C.M. he had stopped seeing Imrie. C.M. was suspicious and checked defendant’s phone to see if he contacted Imrie; she could tell he was still seeing her.
Discovery of the Video
In early July, C.M. saw Imrie at defendant’s taco stand. The next day she checked his phone. The call records had been erased, but there were pornographic pictures and two videos. One video showed defendant having sex with Imrie at a restaurant where he worked. The other video showed defendant having sex with L.M. as she lay incapacitated in her bed. C.M. recognized defendant’s and L.M.’s voices from the audio as well. The video was dated June 14, 2012. C.M. had left L.M. alone with defendant that day.
C.M. tried to send the video to her phone or to a mail account to keep it, but she was unable to do that because it was so long. She remembered defendant had another phone with an extra SD card. She removed the SD card from defendant’s phone and put it in a baggie, and replaced it with the one from the other phone. She knew she had to report the video, but was afraid that the police would think she was a bad mother and take her children away, or that they would not believe her. She was also concerned because she was undocumented.
On July 12, C.M. took L.M. to an appointment with her doctor. C.M. told the doctor about the video she had found and the doctor called the police.
An external examination revealed no obvious sign of trauma to L.M.’s genital area. A sexual assault forensic examination showed a narrowing of L.M.’s hymen at the lower edge and that the outer lips were red. This finding was confirmed by a pediatrician specializing in child abuse. There was a deep hymenal cleft that was suspicious evidence, but not clear evidence, of some abuse.
Arrest and Interrogation of Defendant
The police viewed the sex video. They then went to C.M.’s residence where she gave them consent to search. The police devised a ruse to get defendant to come to the house. They had someone call defendant and tell him there had been a burglary and he was needed to identify possibly stolen property. The police arrested defendant when defendant arrived.
Detectives Scot Krutz and Andrew Newby transported defendant to jail. The trip took 15 minutes and the conversation was recorded. The detectives did not question defendant about the crime. At the station, defendant was advised of his Miranda rights and interviewed. The interview was recorded and played at trial.
Krutz asked defendant about his phone and whether anyone else used it. Defendant said he sometimes let a friend use it to make a call. Krutz asked defendant if he could look at his phone and if there were any videos on it. Defendant said Krutz could look at it, saying he had “nothing to hide,” and that there were no videos. Krutz also had defendant lift his shirt and display his tattoo. It said “CARLOS” above his navel. The tattoo was photographed.
Krutz had watched the four-minute video. He saw a disabled female’s body with her legs being held in the air. A male is standing and thrusting his penis inside her. Portions of the video are dark and then images can be seen at the end. Audio is continuous throughout. When the video was played at a slower speed, Krutz saw a tattoo on the male’s abdomen.
Krutz returned to the interrogation room and told defendant, “We got a problem you and I gotta talk about. [¶] . . . [¶] It’s a very, very serious problem.” Krutz told defendant there was video on his phone card of him raping L.M. Defendant at first denied it. When Krutz asked defendant why he did it, defendant responded he was “too stoned that day,” -- stoned “on weed.” Defendant had gone into L.M.’s room to change her diaper. After he changed her diaper, “that’s when it happened.” He pushed his penis inside her for four or five minutes. Defendant said he had smoked marijuana and had a shot of Patron. He claimed it had happened only once. He claimed he was “under drugs and alcohol.” Defendant admitted he raped L.M. and knew (presumably from her screams) that she wanted him to stop. When asked what he thought should happen next, defendant replied, “I guess I’m going to the jail.”
Defendant wrote a letter of apology to C.M. in Spanish. He read it in English to Krutz. Defendant wrote that he did not do it on purpose and thought it was better if they broke up. He said it was his only mistake, but he knew it was a big one. Much of the letter concerned instructions for C.M. to call defendant’s boss to get work and whom to contact to collect money that was owed to defendant. He also asked C.M. to call Imrie. After reading the letter, defendant asked when would be a good time to call an attorney or a friend, and Krutz told him he would get a phone call at jail.
Detective Newby then questioned defendant, asking how many times he watched the video. Defendant said never. He repeated that he was not sober and insisted it happened only once. Defendant told Newby he held the phone in his right hand to film the rape.
The Defense
Defendant testified through an interpreter; he used one throughout the trial. He declared that he considered L.M. to be his daughter and denied he took the video. He explained why he falsely confessed. A detective (not Krutz) escorted him to the bathroom during a break in the interrogation. That detective told him there was a very serious video and he could spend the rest of his life in prison; it was best that he cooperate. If he cooperated, he would be sent back to Mexico and could start his life again and see his daughters. Defendant (falsely) admitted he had sex with L.M. because “it’s difficult to think you’re going to spend the rest of your life in prison without seeing your family again.” He wrote a letter to C.M. asking for forgiveness because he had hurt her with Imrie. On cross-examination, defendant admitted he had told many lies.
DISCUSSION
I
Separate Crimes Based on Single Act of Intercourse
Defendant contends his conviction on count two, rape of a disabled person unable to consent (§ 261, subd. (a)(1)), must be stricken because he was also convicted in count one of forcible rape under section 261, subdivision (a)(2) based on the same act. Relying on People v. Craig (1941) 17 Cal.2d 453 (Craig), he contends there can be only one conviction for rape based on a single act of sexual intercourse.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” (§ 954, italics added; [citations].)’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) Here, the question is whether defendant committed more than one crime of rape.
Section 261, subdivision (a) defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances . . . .” It then lists seven circumstances, including where the person is unable to consent due to disability (§ 261, subd. (a)(1)) and where the rape is forcible (§ 261, subd. (a)(2)). At the time of Craig, one of these circumstances was that the victim was under 18 years of age. (Craig, supra, 17 Cal.2d at p. 455.) In Craig, the defendant was convicted under two different provisions of section 261 for forcible rape and statutory rape of a minor under the age of consent. (Craig, at p. 454.) Our high court held: “[O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code.” (Id. at p. 458.) The various subdivisions did not create separate crimes. (Id. at p. 455.)
In White, supra, 2 Cal.5th at p. 359, our Supreme Court overruled Craig on this point. Taking a “fresh look” at whether the subdivisions of section 261 are “separate statements of same offense” or whether “they state different offenses,” the court concluded “the same rule should apply to the different subdivisions of section 261, regarding rape, as applies to the different subdivisions of section 288a, regarding oral copulation.” (White, at p. 357.) In People v. Gonzalez (2014) 60 Cal.4th 533, at page 535, the court held the different subdivisions of section 288a “describe different offenses, and defendant may properly be convicted of, although not punished for, both.” Although there were structural differences between section 261 and section 288a, the White court concluded the Legislature did not intend to treat the sex crimes of rape and oral copulation differently. (White, at p. 359.)
Under White, defendant was properly convicted of violating both section 261, subdivision (a)(1) and section 261, subdivision (a)(2). Defendant contends that White was wrongly decided, but recognizes that this court is bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Validity of Miranda Waiver
Defendant contends the trial court erred in admitting his statement to the police, in which he confessed to raping L.M., because he did not voluntarily, knowingly, and intelligently waive his Miranda rights. He contends his implied waiver was not voluntary because the police “softened him up” before questioning and trivialized the importance of Miranda rights. He contends his waiver was not knowing and intelligent because he had limited English skills and other education, he was unfamiliar with Miranda, he lacked sleep and was tired during the interrogation, and he asked about a lawyer at the end of the interrogation, showing he had not understood his rights.
A. Background
1. Defendant Transported to Jail and Interrogated
Detective Krutz took defendant into custody and transported him to the Hall of Justice. The conversation during this transport was taped. Krutz asked defendant to “tell me about yourself,” and they discussed defendant’s work. Defendant said he worked every day and long hours. Krutz responded, “That’s good. Keeps you out of trouble then, huh?” When defendant asked what he did wrong, Krutz told him, “[W]e’re going to get to it” and “[W]e’ll talk about it.” “If you haven’t done anything wrong yet . . . [¶] you don’t have anything to worry about, nothing at all.”
Krutz turned the discussion to defendant’s phone. Defendant had an Android phone; Krutz said it was “nice” and he wanted one because they were “supposed to be super cool,” better than his “dumb-ass phone.” Defendant said he got the phone when someone left it at a nightclub and failed to claim it.
At one point Krutz took a call and told the caller defendant spoke “good English” and did not need a translator. Defendant said, “Maybe it will be better for me if we have a translator.” Krutz said, “No, you don’t need a translator. We just had a conversation for 15 minutes. We understood each other perfectly, right?” Defendant agreed.
At the station, Krutz read defendant his Miranda rights. Kurtz advised Defendant as follows:
Krutz: “Ah, if you have -- you have the right to remain silent. Do you understand?”
Defendant: “The what?”
Krutz: “You have the right to remain silent.”
Defendant: “Okay.”
Krutz: “Anything you say may be used against you in court. Do you understand? Can you say yes or no.” [Defendant was nodding.]
Defendant: “Yes.”
Krutz: “Okay. You have the right to the presence of an attorney before and during any questioning. Do you understand?”
Defendant: “Say again?”
Krutz: “You have the right to the presence of an attorney before and during any questioning. Do you understand?”
Defendant: “Yes.”
Krutz: “If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want. Do you understand that?”
Defendant: “Mm-hm.”
Defendant was then interrogated and confessed to raping L.M. and videotaping the crime.
2. Hearing on Motions to Suppress
Before trial, defendant filed two motions to suppress his statement to the police. The trial court held a hearing.
At the hearing, Krutz testified he and defendant engaged in “small talk” and Krutz thought defendant’s English was “excellent.” Krutz admitted he was interested in defendant’s phone because of the allegation, but claimed he was not thinking about the case when talking about the phone. He wanted to keep defendant calm and therefore cooperative. He kept talking because defendant did; often the transport rides are silent.
Defendant testified he was born and lived in Mexico until he was 18 and knew no English when he arrived in the United States. He had never heard of Miranda rights and claimed he did not understand all the words of the advisement. Instead of “remain silent” he thought Krutz said “remember silent;” he confused “against you” with “again” and had never heard the word “appoint.” If he had known his rights, defendant said he would have exercised them. He claimed he lied when he confessed and he did so because, during a bathroom break, a detective told him it would be better if he cooperated and defendant thought if he confessed, he would be deported instead of going to jail. Defendant also testified Krutz had a gun on the table during the interrogation. Both Krutz and his partner Newby denied there was a gun. An overhead video of the interrogation showed only a phone on the table.
The trial court found defendant’s credibility “very much wanting” and found his claim about the gun “wholesale prevarication.” The trial court found an implied waiver of Miranda rights when defendant continued to talk to law enforcement after advisement. The court further found defendant understood his rights and his statements were voluntary. The court denied the motions to suppress.
B. The Law
“ ‘Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .” (U.S. Const., 5th Amend.) “In order to combat [the] pressures [of custodial interrogation] and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights” to remain silent and to have the assistance of counsel. [Citation.] “[I]f the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial” [citation], at least during the prosecution’s case-in-chief [citations].’ [Citation.] ‘Critically, however, a suspect can waive these rights.’ [Citation.] To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. [Citations.]” (People v. Nelson (2012) 53 Cal.4th 367, 374-375 (Nelson).)
“[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” (Berghuis v. Thompkins (2010) 560 U.S. 370, 388-389 [176 L.Ed.2d 1098, 1115].)
“Determining the validity of a Miranda rights waiver requires ‘an evaluation of the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances surrounding the interrogation’ [citation].” (Nelson, supra, 53 Cal.4th at p. 375.) “Ultimately, the question becomes whether the Miranda waiver is shown by a preponderance of the evidence to be voluntary, knowing and intelligent under the totality of the circumstances surrounding the interrogation. [Citations.] The waiver must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception’ [citation], and knowing in the sense that it was ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ [Citation.]” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.)
C. Standard of Review
We apply federal standards in determining whether defendant’s statements were elicited in violation of Miranda. (People v. Sims (1993) 5 Cal.4th 405, 440.) We accept the trial court’s resolution of disputed facts and its determination of the credibility of witnesses, if supported by substantial evidence, but we independently determine whether the challenged statement was obtained in violation of Miranda. (People v. Weaver (2001) 26 Cal.4th 876, 918.)
D. Voluntariness
Defendant contends his waiver was not voluntary because he had been “softened up” on the ride to the jail. He relies on People v. Honeycut (1977) 20 Cal.3d 150. In Honeycut, an officer who knew the defendant engaged in a half-hour unrecorded conversation with the defendant before advising him of his Miranda rights. They discussed unrelated past events, former acquaintances, and the victim. The officer “mentioned that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies.” (Id. at p. 158.) The officer testified that “ ‘It was my duty to continue the efforts to try to get him to talk. And I was successful in it.’ ” (Ibid.) He could see that defendant “ ‘was softening up.’ ” (Ibid.) Although the conversation-warning-interrogation sequence was not expressly disapproved in Miranda, the Honeycut court condemned “a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation.” (Id. at p. 160.)
The situation here is distinguishable. Krutz had no prior relationship with defendant; the conversation during transport was recorded; and Krutz made no disparaging comments about the victim. Instead, the conversation was innocuous small talk about defendant’s work and the relative merits of different telephones. Miranda applies to evidence obtained during custodial interrogation. (People v. Thornton (2007) 41 Cal.4th 391, 432.) “Interrogation thus refers to questioning initiated by the police or its functional equivalent, not voluntary conversation. [Citation.] ‘ “Volunteered statements of any kind are not barred by the Fifth Amendment. . . .” ’ ” (Ibid.) “[S]malltalk” is not subject to Miranda. (People v. Gamache (2010) 48 Cal.4th 347, 388.)
Defendant further contends Krutz “trivialized” his Miranda rights. Before Krutz gave the advisements, he told defendant: “Well, you know, before we go any further, let me -- I have to read you these so we can talk.” In People v. Musselwhite (1998) 17 Cal.4th 1216, at page 1237, our Supreme Court recognized that “evidence of police efforts to trivialize the rights accorded suspects by the Miranda decision--by ‘playing down,’ for example, or minimizing their legal significance--may under some circumstances suggest a species of prohibited trickery and weighs against a finding that the suspect’s waiver was knowing, informed, and intelligent.” There, before the officer read defendant his rights, he commented: “Well, we don’t know what you know and what you don't know and so, what we’d like to do is just go ahead and advise you of your rights before we even get started and that way, that there’s no problem with any of it. Is that alright with you?” (Ibid.) The court found no misrepresentation of the importance of Miranda rights based on the brief and accurate nature of the statement, the fact officers never described the Miranda warning as a “technicality,” defendant’s prior police contacts, and that he was likely aware he was a suspect in a murder investigation. (Id. at p. 1238.)
As the excerpted portion above demonstrates, although under Musselwhite this factor goes to show whether the waiver was knowing and intelligent, not voluntary, defendant argues it under voluntariness. In any event, although defendant contends Musselwhite is distinguishable because he had no prior police contacts and did not know why he was arrested, we do not find these allegedly distinguishable facts dispositive. In People v. Johnson (2010) 183 Cal.App.4th 253, we found a waiver of Miranda rights voluntary even though the officer referred to the Miranda warnings as a “technicality.” “Referring to the process as clearing a ‘technicality’ and encouraging Holmes to talk and ask questions did not minimize the significance of her rights or the risks of her speaking with detectives. Holmes understood her rights and answered all of the detectives' questions with knowledge of her rights.” (Id. at p. 294.) The same is true here. Krutz advised defendant of his Miranda rights one by one, asking after each if he understood and repeating them when necessary. Defendant did not ask to have his rights further explained and he answered the detective’s questions without hesitation. Nothing indicates defendant’s waiver of his Miranda rights was the result of “ ‘intimidation, coercion, or deception.’ ” (People v. Sauceda-Contreras, supra, 55 Cal.4th at p. 219.) Moreover, we do not read Krutz’s remarks as “trivializing” the Miranda rights. Rather, he indicated their importance by telling defendant he could not talk to him about a crime until defendant was advised of his rights, explaining that is why he did not discuss the charges in the car.
E. Knowing and Intelligent
Defendant contends his waiver was not knowing and intelligent because he had both limited English skills and limited education, he was unfamiliar with Miranda, and he was tired from working all night. Further, he contends his questions about contacting an attorney at the end of the interrogation indicate he did not understand his right to an attorney.
The trial court found defendant’s English was adequate to understand his rights and substantial evidence supports that finding. At no time during the ride to the jail or during the interview did defendant indicate he did not understand what was being said to him. He answered affirmatively when asked if he understood each right and answered all questions. He did suggest a translator might be “better,” but agreed with Krutz that they could understand each other. While at the hearing he claimed he misunderstood several portions of the Miranda advisements, his credibility as to what happened during the interrogation had been seriously compromised by his blatant lie about a gun being on the table as well as having been told he could go back to Mexico if he gave a false confession. It is true that defendant put his head down and rested during breaks in the interrogation, but the video tape shows him alert during the advisement and questioning. Tellingly, defendant never indicated he was too tired to understand what was happening or that he needed to rest. Defendant’s questions about the time to call an attorney (or friend) came only after he confessed and was told he was going to jail. The trial court reasonably interpreted these questions as signaling defendant’s realization that he was about to be charged with the rape of C.M.’s disabled child.
Here a preponderance of the evidence showed that defendant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. (Nelson, supra, 53 Cal.4th at pp. 374-375.)
III
Adequacy of Miranda Advisement
Defendant contends the trial court erred in admitting his statement to the police because he was not given a valid advisement of his Miranda rights. Specifically, he contends the advisement Detective Krutz gave him was inadequate because Krutz told him only that he had the right to the “presence” of an attorney, not the right to “consult” with an attorney. He argues the advisement was inadequate because a reasonable suspect would not understand the right to the presence of an attorney includes the right to consult with the attorney. We disagree and find no inadequacy in the Miranda advisement.
Kurtz advised defendant in part: “You have the right to the presence of an attorney before and during any questioning. Do you understand?” Defendant said, “Say again?” and Krutz repeated, “You have the right to the presence of an attorney before and during any questioning. Do you understand?” Defendant said, “Yes.”
In the landmark Miranda case, the United States Supreme Court held “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” (Miranda, supra, 384 U.S. at p. 469 [16 L.Ed.2d at p. 721].) “Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.” (Id. at p. 471 [16 L.Ed.2d at p. 722].) The high court summarized the advisement that must be given to an individual taken into custody: “He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Id. at p. 479 [16 L.Ed.2d at p. 726] (italics added).)
Miranda warnings “need not be presented in any ‘precise formulation’ or ‘talismanic incantation.’ [Citations.] ‘Reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.” ’ [Citation.]” (People v. Kelly (1990) 51 Cal.3d 931, 948-949.) In People v. Wash (1993) 6 Cal.4th 215, our Supreme Court rejected the argument that an advisement that defendant had the right to an attorney before questioning was inadequate to convey the right to have an attorney present during questioning. The court was “not persuaded--as defendant’s argument implies--that the language was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began.” (Id. at p. 236.)
Here too, the advisement was not so ambiguous or confusing that a reasonable defendant would believe that although he had the right to the presence of an attorney, he had no right to consult with that attorney. As the trial court noted, it would be unreasonable to conclude the attorney was there only “to play the role of the potted plant.” The Miranda decision itself demonstrates that the right to the presence of an attorney is generally understood to include the right of consultation with that attorney. In summarizing the rights that must be communicated before questioning, the court referred to “the right to the presence of an attorney.” (Miranda, supra, 384 U.S. at p. 479 [16 L.Ed.2d at p. 726], italics added.) The high court has subsequently referred to this right as the right to “presence” of counsel. “In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation.” (Fare v. Michael C. (1979) 442 U.S. 707, 717 [61 L.Ed.2d 197, 207].)
V
Admission of Photographs of Defendant’s Altered Tattoo and CALCRIM No. 371
Defendant contends the trial court erred in admitting evidence of photographs taken on June 11, 2013, of the tattoo on his abdomen, which showed the tattoo had been partially obliterated. He contends the court further erred in instructing the jury with CALCRIM No. 371 that an attempt to hide evidence may show awareness of guilt. Defendant contends the photographs were irrelevant because their only possible relevance was to show a consciousness of guilt due to the attempt to change his tattoo. Defendant contends “no rational juror” could have concluded that defendant intended to hide evidence because he knew that photographs of his tattoo had already been taken.
A. Background
On July 12, 2012, when Detective Krutz interviewed defendant, he asked to see the tattoo on defendant’s abdomen and took pictures of it. The tattoo spells out “CARLOS” above defendant’s navel in fancy script; the detective believed defendant’s tattoo was similar to that of the rapist in the video.
Additional photographs of defendant’s abdomen and tattoo were taken a year later on June 11, 2013. In these photographs, defendant’s tattoo is blurred and the skin appears irritated. The People argued defendant was attempting to alter his tattoo to remove a key piece of evidence of his identity. The defense objected to introduction of these photographs because defendant’s tattoo had already been documented at the time of his arrest. The trial court ruled the photographs were admissible to show consciousness of guilt. The parties stipulated the photographs were true and accurate depictions of defendant’s abdomen.
At trial, defendant testified he tried to remove the tattoo because in jail he was told the tattoo was gang-related. He was not trying to destroy evidence.
The court instructed the jury with CALCRIM No. 371: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”
B. Relevance of June 2013 Photographs
Only relevant evidence is admissible. (Evid. Code, § 350.) “The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. [Citation.]” (People v. Yu (1983) 143 Cal.App.3d 358, 376.) Evidence of a change in appearance can be relevant to show defendant’s consciousness of guilt. (People v. Randle (1992) 8 Cal.App.4th 1023, 1036; see also People v. Cunningham (2001) 25 Cal.4th 926, 1001.)
Defendant contends the altered tattoo did not show consciousness of guilt. He relies on People v. Fritz (2007) 153 Cal.App.4th 949. In Fritz, the appellate court held it was error to admit defendant’s false statement that he had never been involved in shoplifting to show defendant’s consciousness of guilt because the lie did not relate directly to the crime charged. (Id. at pp. 957-958.) Defendant contends the alteration of his tattoo does not show consciousness of guilt because he knew the police had already taken a picture of his unaltered tattoo the day he was arrested.
Defendant’s contention is premised on the assumption that he would act only logically. This assumption is unwarranted, as demonstrated by his actions in this case. Defendant taped and kept a video of his serious, violent crime; he lied multiple times, often about things--such as the police displaying a gun during his interrogation--that were easily proved false. Although defendant offered an innocent explanation for his altering his tattoo, “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.” (People v. Maury (2003) 30 Cal.4th 342, 403.) That there was conflicting evidence as to whether the altered tattoo showed consciousness of guilt goes to the weight of the evidence, not its admissibility. (See People v. Barney (1992) 8 Cal.App.4th 798, 812 [possible bias of expert went to weight to be attributed to evidence, not its admissibility].) The trial court did not err in admitting the June 2013 photographs of defendant’s tattoo.
C. Propriety of Giving CALCRIM No. 371
“ ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] [¶] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.’ [Citation.]” (People v. Hart (1999) 20 Cal.4th 546, 620.) It is proper to give a consciousness of guilt instruction if there is some evidence that defendant destroyed or concealed evidence; the evidence need not be conclusive. (People v. Williams (1996) 46 Cal.App.4th 1767, 1780 [police unable to find shoes defendant wore that day, reasonable to assume he hid them].)
Defendant knew the police considered his tattoo significant as they photographed it the day he was arrested. It is uncontested that he later altered the tattoo, apparently attempting to obliterate it. Although there were differing explanations as to why he did this, one reasonable inference was that he was trying to hide identity evidence. Since there was evidence to support giving the instruction, there was no error.
V
Admission of Evidence Defendant Made a Sex Tape with Imrie
Defendant contends the trial court abused its discretion in admitting evidence that he had a sex tape of him and Imrie. He contends the evidence had limited probative value and was greatly prejudicial because it suggested deviant behavior and may have made the jury less inclined to believe him.
A. Background
Prior to trial, the defense objected to the entire contents of defendant’s SIM card being admitted or shown to the jury. The People indicated they intended to introduce some of the photos, such as family pictures, but not the “large quantity of pornographic material.” The prosecutor offered that she and defense counsel attempt to reach an agreement; if they were unable to, they would involve the court.
On cross-examination, the People asked defendant if he made a sex tape with Imrie. The defense objected on the basis of relevance. After a bench conference, the trial court overruled the objection. Defendant answered yes; he took the video with his personal cell phone in the bathroom of the restaurant where he worked.
The parties later put the contents of the bench conference on the record. They referred to an earlier discussion in chambers that is not part of the record. The defense argued the video was not relevant. The People argued evidence that defendant had recorded the video on his phone was relevant to show the SIM card was his and that he knew how to record a sex video with his phone, and to show defendant lied to Imrie when he told her that video was the only one on his phone. The trial court concluded it was “fair game” to bring up the video; it was not cumulative. The court found the video was prejudicial, but its probative value outweighed the prejudice.
B. The Law and Analysis
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “A trial court is vested with wide discretion in deciding the relevancy of evidence. [Citation.] Further, it is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. [Citation.] On appeal, the court’s exercise of such discretion will not be disturbed absent a clear showing of abuse. [Citations.]” (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.)
We find no abuse of discretion in admitting the evidence that defendant made the sex video with Imrie. As defendant concedes, the evidence was probative to show the SIM card, on which C.M. found the video of L.M. being assaulted, was defendant’s. It was also probative to show defendant knew how to make a sex video with his phone. Finally, it had some probative value as to defendant’s credibility to show he lied to Imrie. Although the probative value was not great, the trial court did not abuse its discretion in finding the probative value was not substantially outweighed by the possibility of undue prejudice. We find the prejudicial effect less than defendant asserts. The video was not shown to the jury and the evidence concerning it was brief, only three questions. Defendant contends the evidence of the video made the jury less inclined to believe him. It is much more likely that the evidence of defendant’s multiple lies, and the improbability of his claim of innocence given the strength of the evidence against him, destroyed his credibility.
Further, any error would be harmless. We reject defendant’s argument that admitting the brief evidence of the sex video rendered the trial unfair so as to constitute constitutional error. In general, “the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution.” (People v. Cudjo (1993) 6 Cal.4th 585, 611.) The applicable standard of prejudice for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, at page 836, is that the error is harmless if it does not appear reasonably probable the verdict was affected. (Cudjo, at p. 611.) Here, the evidence against defendant was very strong. He confessed to raping L.M. and the crime was captured on a video found on the SIM card of defendant’s cell phone. C.M. identified defendant as the perpetrator in the video, and that identification was corroborated by the similarity of the perpetrator’s tattoo to that of defendant.
Defendant argues his confession “could be explained away as the result of Detective Newby’s suggestion that he could escape a life sentence in prison if he confessed.” Defendant ignores that his credibility on this point was severely weakened because he did not report this conversation until the suppression hearing, and he demonstrably lied about other coercive police tactics, such as the claim there was a gun displayed on the table during the interrogation. He contends C.M.’s testimony about finding the video on his SIM card and her identification of him in the video is suspect because she had a motive to lie due to his infidelity with Imrie. While C.M. may have had a bias against defendant, he offers no plausible explanation as to how she framed him by placing the incriminating video, which included extensive recognizable sounds, on his SIM card.
VI
Pretrial Custody Credits
Defendant contends the trial court erred in awarding him 464 days of presentence custody credits. The People properly concede that his credits equaled 472 days.
Defendant receives credit upon his term of imprisonment for all days of custody prior to sentencing. (§ 2900.5.) He receives credit for the day of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) Defendant was arrested on July 12, 2012, and was sentenced on August 26, 2013. He had 411 days of actual credit. Because defendant was convicted of forcible rape, a violent felony (§ 667.5, subd. (c)(3)), he receives conduct credit of only 15 percent. (§ 2933.1.) He had 61 days of conduct credit, for total presentence credit of 472 days.
DISPOSITION
The judgment is modified to award defendant 472 days of presentence conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy to the Department of Corrections and Rehabilitation.




/s/
Duarte, J.


We concur:




/s/
Hull, Acting P. J.




/s/
Mauro, J.