P. v. Herrera



















Filed 7/9/12 P. v. Herrera CA2/8

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION EIGHT




>

THE PEOPLE, Plaintiff and Respondent, v. PABLO HERRERA, Defendant and Appellant.

B230337 (Los Angeles County Super. Ct. No. TA106282)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Eleanor J. Hunter,
Judge. Affirmed as modified.



Deborah L.
Hawkins, under appointment by the Court of Appeal, for
Defendant and Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.



__________________________





Defendant appeals from his conviction for two counts of
murder with special circumstances, three counts of href="http://www.fearnotlaw.com/">attempted murder, kidnapping, felon in
possession of a firearm, as well as the corresponding gang and firearm
allegations.href="#_ftn1" name="_ftnref1"
title="">[1] His conviction arose out of shootings in 2007
and 2009. In 2009, while defendant was
in custody on an unrelated offense, he confessed to the 2007 and 2009 crimes to
undercover deputies posing as inmates.
On appeal, defendant complains that his jailhouse confession should have
been excluded on various grounds. He
also argues that the 2007 and 2009 crimes should not have been tried
together. Finally, he claims error in
the imposition and calculation of custody and various fines. We disagree with all but his contention
concerning the fines. We also conclude
that defendant received more custody credits than he was entitled. We affirm the judgment with modifications.



FACTUAL
AND PROCEDURAL BACKGROUND



1.
March 17,
2007 (Counts 1 & 2)



On
March 17, 2007, I.G. was walking in Compton when he heard gunshots, and saw a
blue truck heading east on Josephine Court, and a light colored car heading
west. I.G. saw one person in the truck,
wearing a baseball cap. Los Angeles
County Sheriff’s Deputy Haralon Hicks responded to the shooting, and found
Manuel Garcia Perez shot in the head, barely alive, slumped down in the
passenger seat of a silver 2005 Chevy Impala.
There was a Washington Nationals baseball cap near Perez on the
passenger floorboard. The driver, E.C.,
was out of the car looking for help. The
car’s front windshield and back window were shattered. There were no firearms or unfired bullets in
the car.

Perez
later died from a gunshot
wound to the head.

Responding
deputies found shattered auto safety glass, bullet fragments, and a lead core
bullet at the intersection of Bullis Road and Josephine Court. The fragments were most likely fired from a
.38 special or a .357 magnum revolver.
All of the bullets and fragments were fired from the same gun.

Defendant’s
dark blue Mitsubishi truck was seized on March 20, 2007, in front of his home
on Short Avenue in Compton. Officers
recovered a fired bullet from the truck, and the truck tested positive for
gunshot residue.

That
same day, deputies executed a search
warrant at defendant’s home. They
found a box of .38 special rounds in the main bedroom, and graffiti on the
garage door which said “SSCR,” for “South Side Compton Varios,” “MFL,” and
“13.” They also found a bag of dog
food. They did not find a gun. No arrests were made.



2.
February 8,
2009 (Counts 3-8)



On
February 8, 2009, J.A. was 13 years old.
He was on the corner of Golden Street and Short Avenue in Compton when a
man, wearing a blue Dodgers sweater and baseball cap, approached him and asked
whether he was from “NSW” or belonged to a gang. J.A. responded that he was not a gang
member. The man put his hand on J.A.’s
shoulder, and threatened to kill him if he did not come with him. J.A. complied and walked with him toward
Golden Street. The man asked him whether
he knew the three or four men sitting on the steps of an apartment building at
the 1200 block in East Golden Street.
J.A. did not know them. The man
then left J.A., pulled out a medium sized silver handgun, and walked toward the
men sitting in front of the apartment building.
He fired at them, and they ran up the stairs of the complex.

At
approximately 5:30 p.m. the same day, J.G.J. was walking from Long Beach Boulevard
toward Golden. Two men walked past him;
the older one, identified as defendant in a photo array, was wearing a blue
sweatshirt and baseball cap. Defendant
placed his right hand near the waist of his pants, and then J.G.J. heard
several gunshots. Defendant ran with the
pistol toward Short Avenue, got in the passenger side of a striped GMC pickup
truck, which sped off down Short Avenue.


F.C.
was on the stairs outside the Golden Street apartment complex when he noticed a
man coming toward his group, which included his friend, A.Z., and A.Z.’s
cousin, Angel Hernandez. A.Z. lived in
the building. The man was wearing a blue
Dodgers hat and a sweater. He pulled a
silver gun out of his pocket, pointed the gun at F.C., fired one shot, and then
fired three more. F.C. ran up the
complex’s stairs, and when he looked back he saw that Hernandez had been
shot.

A.Z.
saw a man lift up his shirt and pull out a gun from his waistband. The man had a tattoo with large lettering
across his stomach. The gun was a dark
nine-millimeter. A.Z., F.C., and
Hernandez ran up the apartment stairs.
A.Z. heard nine or ten shots, and saw his cousin, Hernandez, get shot. The shooter then ran away toward Short
Avenue. Some of the bullets hit the wall
of the apartment building. A.Z. had seen
the shooter in the neighborhood about two weeks earlier, driving very slowly in
a truck.

Hernandez
was shot twice, and died from his injuries.


Jesus
A. was near Poppy Street when he heard gunshots. He saw an S-10 truck driving quickly
away.

Homicide
detective Robert Kenney responded to the shooting at approximately
8:30 p.m. Four expended .45 caliber
cartridge casings were found at the scene.
A bullet was found on the second floor of the complex. They were fired from the same gun.

On
February 27, 2009, Detective Kenney executed a search warrant on defendant’s
home, found a set of car keys with the GM insignia, and found two blue Dodgers
caps and blue folders with gang writing and pictures of gang members. Kenney returned to defendant’s home on March
9, and found a business card for an auto body and paint shop. When he went to the shop, employee E.M.
reported that he had dismantled an S-10 and gotten rid of the pieces. Deputies eventually recovered many of the
pieces. The key found at defendant’s
house fit the recovered glove box.

E.M.
testified that in February 2009, defendant brought a Chevy S-10 to the auto
body shop to have the truck painted. The
truck was blue with a gray stripe around it.
E.M. sanded and primered the truck, but eventually dismantled it for
parts after defendant’s wife called and said they did not intend to pick it
up.



3.
Jailhouse
Confession



Detective
Manuel Avina participated in an undercover operation on March 27, 2009, at the
Compton Courthouse. He and his partner,
Detective Mike Beltran, were dressed as inmates and placed in a holding cell
with defendant. There was a recording
device in the cell. A transcript of the
recording was admitted at trial.

Defendant
was in jail for a “hot one,” which is jail lingo for murder. When the detectives asked what evidence there
may be against him, defendant responded, “They have to have fingerprints.” When asked whether he still had the gun used
in the crime, he responded that it was “[g]one.” When Detective Beltran asked defendant how he
disposed of the gun, defendant told him he sold it. Beltran asked defendant whether “You got the
[bullet] casings . . . ?
Were they picked up or leave them there?” Defendant responded, “No, we picked them
up.” Defendant admitted that he buried
the casings, and that the gun used was a revolver. He admitted membership in the Mexicans for
Life (MFL) gang.

Beltran
told defendant a story about sanding a car to conceal evidence of a murder, and
defendant told detectives he did the same thing to his two-tone blue and gray
truck, but that police had nevertheless recovered it. On the day of the 2009 murder, defendant told
a kid, “Don’t say anything or I’ll kill you.”
He admitted to shooting one person, but that other people were present,
and that they ran. He fired seven
shots. The people he shot at were not
from a gang, but were taggers. “But
those fools had killed one of [his] homies.”
Defendant had a friend waiting for him around the corner. He believed that “[t]wo old ladies . . . saw
[his] truck,” so he took it to the shop to have it painted, but later decided
to junk it.

As to
the 2007 murder, defendant admitted that his friend shot someone. Defendant hid the .38 caliber gun in a bag of
dog food, and the police did not find it when they searched his home. He later sold the gun to a “black guy.” Defendant was driving, and his friend was in
the passenger seat and shot across defendant’s body at a car driving in the
opposite direction. Defendant was driving
a navy blue truck, which was seized by the police.



4.
Gang Evidence



Defendant
is a member of “MFL,” which stands for “Mobbing for Life” or “Mexicans for
Life.” His moniker is Shorty. It is a sect of the Compton Vario Setentas,
one of the largest Hispanic gangs in Compton.
MFL has approximately 30 members, and their primary activities are
shootings and murders, among other crimes.
Defendant has “Mexicans for Life” tattooed on his stomach, and “13,”
signifying the Mexican Mafia.

MFL was
engaged in a gang war with “NSW,” which stands for “Never Stop Writing” or
“Never Show Weakness.” There was NSW
graffiti outside the apartment building where Angel Hernandez was killed. Compton Vario Tiny Gangsters are also an
enemy of MFL, and Perez was shot in Vario Tiny Gangster territory. Perez was wearing a Washington Nationals
baseball cap, frequently worn by NSW members.
The killings would benefit defendant’s gang because they would enhance
its reputation.



5.
Pretrial
Motions



The
following evidence was presented at the Evidence Code section 402 hearing
concerning the admissibility of defendant’s jailhouse confession: On March 26, 2009, Detective Mark Lillienfeld
and his partner, Detective Kenney, interviewed defendant while he was in
custody at the Twin Towers Correctional Facility regarding the February 8,
2009 murder. They advised him of his
rights under Miranda,href="#_ftn2" name="_ftnref2" title="">[2]> and he did not invoke his rights or
request counsel.

Defendant
had been sentenced to state prison on
unrelated gun charges three days before the interview. He was awaiting transfer to the Department of
Corrections, and the Sheriff’s Department did nothing to impede the
transfer. There was no delay in
defendant leaving county custody caused by the investigators.

During
the interview, defendant admitted membership in the Mexicans for Life street
gang. Defendant was not restrained
during the interview, and the detectives did not have their guns. Defendant was “courteous, polite, almost
jovial” during the interview. He laughed
and was responsive to the detective’s questions. He did not claim any responsibility for the
2009 murder the detectives were investigating.
The interview lasted 20 minutes.

Detective
Lillienfeld told defendant that he and his partner were going to “present the
facts of the case to the District Attorney’s Office and that [they] believed
there was sufficient evidence where a charge would be filed against him
charging him with murder.” He informed
defendant that he was being transferred to the Compton Courthouse to be charged
for murder the following day.
Lillienfeld did this for the purpose of “plant[ing] a seed in
[defendant’s] mind of . . . what information, evidence [he has] in the case
that’s incriminating to them and in the hopes that, as the investigation
furthers, perhaps they’ll discuss that with somebody or they’ll do something
that will be incriminating.” He wanted
to prepare defendant for an undercover operation planned for the following
day. Lillienfeld did not place defendant
under arrest for murder because he was already in custody. However, there is a form called an
“additional charge form” which can be used to link new charges to someone who
is already in custody. The Compton
Courthouse is where the murder case against defendant would have been filed,
however, no case was brought against him on March 27, 2009. The information was not filed until April 24,
2009.

Detective
Lillienfeld briefed the undercover detectives on the state of the murder
investigation and the evidence they had.


On
March 27, 2009, Detectives Avina and Beltran posed as inmates. They were placed in a holding cell with
defendant at the Compton Courthouse.
Avina did not claim any gang membership.
Beltran claimed to be from Garrity, an East Los Angeles gang. Defendant did not appear scared. The three started talking about where they
grew up, where their families were from, and where they lived. Neither detective ever threatened defendant,
nor implied that he had to talk to them.
They talked over the course of several hours. Defendant immediately discussed the murders
the detectives were investigating. He
never indicated that he did not want to talk to the undercover detectives. He did express concern that the cell might be
equipped with a hidden recording device.
To put defendant at ease, the detectives described crimes they had
committed. The conversation with
defendant was relaxed and jovial. When
defendant intimated that the cell was wired by putting his finger to his ear,
Avina laughed and joked that “maybe the mic’s in the roll of toilet
paper.” The cell was equipped with a
recording device, and their exchange was recorded.

Defendant
sought to exclude his recorded statements on grounds substantially similar to
those now raised on appeal. The trial
court disagreed, concluding that defendant had no Sixth Amendment right to
counsel on the new charges at the time of the undercover operation, that he was
not unlawfully detained when he was moved to the Compton Courthouse because he
was already in custody on a different charge, and that “[t]here does not appear
to be any coercion . . . . [¶] . . . based on the totality of the
circumstances, there weren’t the inherent pressures of a police agency putting
officers talking to him and pulling out involuntary statements.”

Defendant
also sought to sever trial of the 2007 and 2009 crimes. The People argued the crimes were properly
joined because of overlapping gang evidence, and because defendant confessed to
both crimes to detectives during the same undercover operation. The trial court denied the motion, finding
that there was cross-admissible gang and jailhouse confession evidence, and
that it did not “seem like one case is . . . substantially stronger than the
other.”



>DISCUSSION



Defendant
contends: (1) he was denied due process
by “law enforcement’s manipulation of the date of the filing of the complaint,”
reasoning that when undercover deputies questioned him there was enough
evidence to charge him, and therefore he was unfairly deprived of his right to
counsel; (2) he was illegally detained when deputies transferred him from jail
to the Compton Courthouse to conduct an undercover operation; (3) his
confession to undercover deputies was coerced; (4) the trial court abused its
discretion when it failed to sever trial of the 2007 and 2009 crimes; and (5)
he received improper restitution and parole revocation fines and too few
custody credits.



A.
Due Process



Defendant
contends his due process rights were
violated by the undercover operation at the Compton Courthouse, reasoning that
law enforcement strategically delayed filing charges against him for the
murders, and that “[b]y delaying the filing of charges until appellant confessed
to the undercover officers, under existing constitutional precedent, law
enforcement exploited its ability to deny appellant access to counsel.” The Sixth Amendment prohibits the government
from deliberately eliciting incriminating statements from a defendant in the
absence of counsel, and from knowingly exploiting an opportunity to confront a
defendant without counsel. (Maine v.
Moulton (1985) 474 U.S. 159, 176; People v. Frye (1998) 18 Cal.4th
894, 991.) The government is also
prohibited from using undercover agents to deliberately elicit incriminating
statements from an accused in contravention of the href="http://www.mcmillanlaw.com/">Sixth Amendment right to counsel. (Massiah v. United States (1964) 377
U.S. 201, 206; People v. Webb (1993) 6 Cal.4th 494, 526.) However, the Sixth Amendment right to counsel
attaches “at the ‘ “initiation of adversary judicial criminal proceedings –
whether by way of formal charge, preliminary hearing, indictment, information,
or arraignment.” ’ [Citation.]” (People v. Webb, supra, at
p. 526.) Here, when the recorded
conversation took place, adversary judicial criminal proceedings had not yet
been initiated, and the Sixth Amendment right to counsel had not attached. (People v. Webb, supra, at p. 527; People
v. Wader (1993) 5 Cal.4th 610, 636.)


Defendant
acknowledges that the right to counsel does not attach until charges are filed,
but posits that the strategic delay of the filing of charges violated his right
to due process. While
it is true that “ ‘[d]elay in prosecution that occurs before the accused is
arrested or the complaint is filed may constitute a denial of the right to a
fair trial and to due process of law under the state and federal
Constitutions,’ ” (People v. Boysen
(2007) 152 Cal.App.4th 1409, 1419-1420) the only alleged prejudice from the
delay was that detectives were able to bolster their investigation by tricking
defendant into incriminating himself. “A
court should not second-guess the prosecution’s decision regarding whether sufficient
evidence exists to warrant bringing charges. ‘The due process clause does not
permit courts to abort criminal prosecutions simply because they disagree with
a prosecutor’s judgment as to when to seek an indictment. . . . Prosecutors are under no duty to file charges
as soon as probable cause exists but before they are satisfied they will be
able to establish the suspect’s guilt beyond a reasonable doubt.’ ” (People
v. Nelson (2008) 43 Cal. 4th 1242, 1256.)
From the record before us, we cannot say as a matter of law that there
was adequate evidence to support the filing of an information at the time of
the undercover operation, or that prosecutors improperly delayed the filing of
charges. Due process “ ‘protects a
criminal defendant’s interest in fair adjudication by preventing unjustified
delays that weaken the defense through the dimming of memories, the death or
disappearance of witnesses, and the loss or destruction of material physical
evidence.’ ” (Id. at p. 1250.) It does
not, as defendant urges, protect against minimal delays in the filing of
charges necessitated by the need to thoroughly investigate suspected
crimes.



B.
Illegal
Detention



At
trial, defendant moved to suppress defendant’s jailhouse confession on Fourth
Amendment grounds, reasoning the statements were the “fruit of an illegal and
unauthorized detention.” Defendant
contends that he was illegally detained when he was moved from the Twin Towers
jail facility to the Compton Courthouse for the purpose of conducting the
undercover operation. Defendant reasons
he “was in custody in March 2009 pursuant [sic]
the statute that authorized his incarceration on the weapons charge. In March 2009 the state had no authority to
imprison or detain appellant on the March 2007 and February 2009 crimes alleged
in this case until the state lawfully arrested him for those crimes. . . . The state had no authority under
[defendant’s] sentence on the weapons charge to detain him on the unrelated
charges of this case.” As defendant
admits, he was in the custody of the Sheriff’s Department at the time of the
undercover operation. County jails
overseen by sheriffs are used to detain people charged with crimes and awaiting
trial, as well as to confine people sentenced to imprisonment upon conviction. (Pen. Code, § 4000.) Holding cells at courthouses also fall under
the control of the sheriff. (See, e.g., >People v. Carter (1981) 117 Cal.App.3d
546, 549-550.) Because defendant was
already in custody, we can see no meaningful distinction between questioning
defendant at the Twin Towers jail facility or at the Compton Courthouse. The Fourth Amendment protects citizens from
arbitrary and unreasonable searches and seizures. (People
v. Souza (1994) 9 Cal.4th 224, 229.)
A “seizure” triggering the
protection of the Fourth Amendment occurs when government actors have, “by
means of physical force or show of authority . . . in some way restrained the liberty of a citizen.” (Terry v. Ohio (1968) 392 U.S. 1, 19,
fn. 16.) Because
defendant’s freedom was already curtailed by his lawful incarceration,
defendant’s claim that he was somehow “deprived of liberty” when he was taken
to the Compton Courthouse is unpersuasive.




C.
Coercion



Defendant next argues that
his statements to undercover detectives were coerced. He acknowledges that “[c]onversations between
suspects and undercover agents do not implicate the concerns underlying >Miranda.” (Illinois
v. Perkins (1990) 496 U.S. 292, 296 [undercover officer posing as a fellow
inmate need not provide Miranda
warnings before asking questions likely to elicit an incriminating
response].) This is because “[t]he
essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not
present when an incarcerated person speaks freely to someone whom he believes to
be a fellow inmate.” (>Ibid.; see also People v. Williams (1988) 44 Cal.3d 1127, 1142 [“When a defendant
talks to a fellow inmate, the coercive atmosphere of custodial police
interrogation is absent”].)

He contends,
however, that his jailhouse confession was involuntary because he was reluctant
to talk, and the detectives’ assurances that the cell was not wired lulled him
into admitting his crimes. He contends
he would not have made the inculpatory statements if he had known he was being
recorded, and that the detectives “exerted improper influence over [defendant]
when they led him to believe the room was not wired.” We disagree.

“>Miranda was not meant to protect
suspects from boasting about their criminal activities in front of persons whom
they believe to be their cellmates.” (>Illinois v. Perkins, >supra, 496 U.S. at p. 298.) Defendant has not suggested, nor does the
record support, that the detectives posing as inmates used physical force or
threats to make him talk. His claim that
the atmosphere of his confinement was coercive, although certainly true in a
general sense, would be just as true whether the inmates were imposters or real
criminals. The record shows that
defendant freely spoke about his criminal activities, and that the atmosphere was
congenial and relaxed, with defendant and the detectives laughing often. The detectives never led defendant to believe
that he was not being recorded. The
detectives joked about it, but encouraged defendant to look for a
microphone. Even though defendant was
concerned that he was being recorded, he spoke anyway. He cannot now complain about the consequences
of his folly.



D.
Joinder/Severance



Defendant contends the trial
court abused its discretion when it denied defendant’s motion to sever the trial
of the 2007 and 2009 crimes. A trial court may permit offenses that are of the same class of
crime, or are connected in their commission, to be charged and tried
together. (Pen. Code, § 954.) Even when joinder is permissible under
section 954, severance may be constitutionally required if joinder of the
offenses would be so prejudicial that it would deny defendant a fair
trial. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244 (>Musselwhite).) “Whether offenses properly are joined
pursuant to section 954 is a question of law and is subject to independent
review on appeal; the decision whether separate proceedings are required in the
interests of justice is reviewed for an abuse of discretion.” (People
v. Cunningham (2001) 25 Cal.4th 926, 984.)


The parties
agree that the murders are of the same class; joinder was thus proper. However, severance may still be required if
joinder would be so prejudicial that it would render the trial unfair. (Musselwhite,
supra, 17 Cal.4th at
pp. 1243-1244.) A defendant “must
make a ‘ “clear showing of prejudice
to establish that the trial court abused its discretion.” ’ ” (People
v. Soper (2009) 45 Cal.4th 759, 774 (Soper);
see also People v. McKinnon (2011) 52
Cal.4th 610, 630 (McKinnon).) Although we review the particular
circumstances of each case, “‘certain criteria have emerged to provide guidance
in ruling upon and reviewing a motion to sever trial.’ [Citation.]”
(Soper, supra, 45 Cal.4th at p. 774.)

Initially, we
consider whether evidence would be cross-admissible if the offenses were tried
separately. (Soper, 45 Cal.4th at p. 774.)
If evidence of one crime would be admissible at a separate trial of the
other crime, any potential prejudice is ordinarily dispelled. (McKinnon,
supra, 52 Cal.4th at p. 630.) However, lack of cross-admissibility is not,
by itself, sufficient to demonstrate prejudice and prohibit joinder. (Id.
at pp. 630-631.) Here, it is clear
that the gang evidence, which was probative of defendant’s motive, was
cross-admissible. Gang evidence may
be relevant to “identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime.” (People
v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Both victims were
potentially members of a rival gang, based on their presence in rival gang
territory and their manner of dress. Defendant contends that the gang evidence is not cross-admissible,
relying on Williams v. Superior Court
(1984) 36 Cal.3d 441, where joinder was found to be improper. In Williams,
the court concluded that just because the two murders were gang related did not
render the gang evidence cross-admissible under Evidence Code section
1101. (Williams, at p. 450.)
However, Williams was a
capital case, where “it is the joinder itself which gives rise to the
special circumstances allegation of multiple murder.” (Id.
at p. 454.) Therefore, “the court [had
to] analyze the severance issue with a higher degree of scrutiny and care than
is normally applied in a noncapital case.”
(Ibid.) Williams
also predated Penal Code section 186.22, so its treatment of gang evidence is
inapposite.

We also consider
whether the benefits of joinder outweigh the “ ‘spill-over’ ” effect
that the evidence of other crimes may have on the jury. (Soper,
supra, 45 Cal.4th at
p. 775.) In making this
determination, we consider whether some of the charges are likely to inflame
the jury against the defendant. (>Ibid.)
We also consider whether a weak case is joined with a strong case so that
the totality of the evidence could have altered the outcome as to some or all
of the charges. (Ibid.)

Defendant
contends that joinder was likely to inflame the jury, reasoning that the gang
evidence was likely to give the jury an impression of “ongoing gang rivalry and
retaliation.” However, the crimes were
similarly brutal, and their joinder was unlikely to give the impression of an
ongoing gang war, and therefore unlikely to inflame the jury. Defendant also contends that the evidence for
the 2007 case was weaker, and thus the outcome was likely tainted by its
joinder to the stronger 2009 case.
Defendant is mistaken. There was
strong evidence for the 2007 case, consisting of a car linked to defendant
matching the description provided by a witness, gun powder residue, bullets
found at defendant’s house, and defendant’s jailhouse confession. Neither incident was significantly stronger
or more inflammatory than the other.

“[T]he benefits
of joinder are not outweighed—and severance is not required—merely because
properly joined charges might make it more difficult for a defendant to avoid
conviction compared with his or her chances were the charges to be separately
tried.” (Soper, supra, 45 Cal.4th
at p. 781.) Based on the facts before
the trial court, we conclude the court did not abuse its discretion in denying
severance.



E.
Restitution
and Parole Fines



Respondent concedes that defendant was improperly charged
separate restitution and parole fines of $10,000 each for the murders. Penal Code sections 1202.4 and 1202.45
require that fines be imposed in “every case.”
Separate charges still constitute “one case” for purposes of imposing of
fines and fees. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1277-1278.) Therefore, since this matter was a single
case, only one set of fines should have been imposed, and the abstract of
judgment should be corrected to eliminate the additional restitution and parole
fines.



F.
Custody
Credits



Defendant was sentenced on January 11, 2011. He received 689 days of custody credit,
consisting of 689 actual presentence days in custody. This number was calculated based on an arrest
date of February 21, 2009, supplied by defendant’s counsel at the sentencing
hearing. On appeal, defendant relies on
a supposed arrest date of February 2, 2008, noted in his probation report to
conclude that he was given an improper amount of custody credits, reasoning
that he should have received 1,075 days of credit. Respondent contends that defendant should
have received 690 days based on the arrest date reported by defense counsel at
the sentencing hearing (the court failed to include the day of sentencing in
the calculation). (See Pen. Code, §
2900.5; People v. Smith (1989)
211 Cal.App.3d 523, 526.) However,
respondent contends that defendant is entitled to only 628 days of custody
credit, because the reported arrest date of February 21, 2009, is inaccurate as
defendant was already in custody on unrelated charges. He contends credits should accrue from filing
of the information on April 24, 2009.

The
February 2, 2008 arrest date in the probation report is clearly a typographical
error, because the second murder occurred on February 8, 2009, and therefore it
is obvious that defendant was not in custody then. Defendant concedes the error, but urges that
the case should be remanded to the trial court to determine the date of arrest,
concluding that the April 24, 2009 date suggested by respondent is
arbitrary. We agree that defendant
should receive 628 days of custody credit, and disagree that the April 24, 2009
date is arbitrary. The information was
filed on April 24, 2009, while defendant was already in custody in a different
case. Detective Lillienfeld testified
that defendant was not “arrested” on the new charges until the new information
was filed. Therefore, remand is
unnecessary, and the abstract of judgment should be modified to reflect
628 days of custody credit.



DISPOSITION



The judgment is affirmed as
modified to reflect a total of 628 days custody credit, as well as to reduce
the restitution and parole fines to $10,000 each. The superior court is directed to prepare an
amended abstract of judgment, and shall forward a certified copy of the same to
the Department of Corrections and
Rehabilitation.







RUBIN,
J.

WE CONCUR:







BIGELOW, P.J.







FLIER,
J.