P. v. Trotter

Filed 9/13/18 P. v. Trotter CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and Respondent,
v.
DESTINY TROTTER et al,
Defendants and Appellants.
B283549
(Los Angeles County
Super. Ct. No. GA100441)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed as modified.
John F. Schuck for Defendant and Appellant Destiny
Trotter.
Rachel Varnell for Defendant and Appellant Donald
Trotter.
Heather J. Manolakas for Defendant and Appellant Daven
Trotter.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Marc A. Kohm and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________

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INTRODUCTION
Defendant-siblings Destiny, Donald, and Daven Trotter
appeal their convictions for attempted burglary. Defendants
argue that the trial court abused its discretion in denying their
Romero motions. Destiny and Donald assert that the trial court
violated the constitutional prohibition against cruel and unusual
punishment in sentencing them to 40 and 35 years, respectively.
Daven argues his 9-year sentence should be reversed because the
trial court improperly admitted prior bad act evidence regarding
a similar attempted burglary. Destiny and Donald also assert
that the abstracts of judgment should be amended to reflect 154
days of presentence conduct credit. We agree the trial court erred
in calculating Destiny’s and Donald’s presentence credit and
direct the superior court to modify the abstracts of judgment so
that each receives 154 days total presentence conduct credit. We
affirm on all other grounds.
FACTS AND PROCEDURAL BACKGROUND
1. Attempted Burglary
Defendants Destiny, Donald, and Daven Trotter are
siblings in their 20s. On the evening of January 18, 2017,
defendants attempted to burglarize a home, which at that time,
was occupied by the elderly woman who lived there. Two of the
defendants approached the victim’s home, repeatedly rang the
doorbell, looked in through the windows using a flashlight, broke
the deadbolt lock on the exterior side gate, circled to the back of
the home, and attempted to break in. In front of the home, the
third defendant waited in the idling getaway car. The victim
called police, who saw defendants speed off in the getaway
vehicle outside the victim’s home and apprehended them a block
away. Donald was in the driver’s seat. The vehicle was

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registered to Daven and had paper plates. Defendants denied
involvement in the attempted burglary.
2. Charges
The People charged defendants with attempted first degree
burglary with a person present. The information alleged that
Destiny had been convicted of three serious and/or violent
felonies within the meaning of the Three Strikes Law, had been
convicted of three no-probation felonies, had served three prior
prison terms, and had suffered three prior serious felony
convictions for first degree burglary.
The People alleged Donald had been convicted of two
serious and/or violent felonies within the meaning of the Three
Strikes Law, had served two prior prison terms, and had suffered
two prior serious felony convictions for first degree burglary.
The information also alleged Daven had been convicted of
one serious and/or violent felony within the meaning of the Three
Strikes Law, had been convicted of a no-probation felony, had
served a prior prison term, and had suffered a prior serious
felony conviction for first degree burglary.
3. Rejected Plea Deal
On April 20, 2017, the People offered defendants a package
plea deal: 12 years for Destiny and 7 years each for Donald and
Daven. Defendants decided not to accept the plea deal.
4. Trial
On May 1, 2017, trial commenced. The prior convictions
were bifurcated for a separate trial. At trial, the jury heard
testimony from the victim as well as the investigating and
arresting police officers. The court also admitted evidence of
uncharged prior conduct from 2015 by Destiny and Daven. In
June 2015, Destiny approached witness Frank W.’s house and

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knocked on his door. When Frank W. answered, Destiny seemed
startled and asked if “Joe McKinsey” lived there. Frank W.
testified that he replied no, and Destiny turned around and
jogged back to a black sedan parked in front of the house. Frank
W. testified there was a driver in the car and that Destiny went
to the front passenger seat.
Frank W. called the police to report the suspicious
behavior. Police arrived to his home within ten minutes of his
call, and took Frank W. to the location where a black sedan
matching the description he provided had been stopped by police.
Destiny, Daven, and another man were in the car. Frank W.
identified Destiny as the woman who knocked on his door. Frank
W. also identified the sedan by its appearance and his memory of
the first digit on the license plate. During police interrogation
that followed, Destiny denied knocking on Frank W.’s door and
Daven claimed to be asleep in the car the whole time.
The jury found defendants guilty of attempted first degree
burglary of the elderly woman’s home.1 In a bifurcated
proceeding, the court found defendants’ prior conviction
allegations to be true.
5. Sentencing
Prior to sentencing, defendants made Romero motions,
requesting the court to strike one or more of their prior respective
strikes. We discuss the contents of their individual motions
below. The court denied all three Romero motions.
The court sentenced Destiny to an aggregate sentence of 40
years to life. This was composed of a base sentence of 25 years to
life (pursuant to the Three Strikes law), plus 15 years on the
three prior serious felony convictions. The trial court awarded
1 The jury did not make a person present finding.

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Destiny a total of 186 days custody credit (155 days of actual
custody and 31 days of conduct credit).
The trial court sentenced Donald to an aggregate sentence
of 35 years to life: 25 years to life under the Three Strikes law
and 10 years on the two prior serious felony convictions. The
trial court awarded Donald a total of 186 days custody credit (155
actual custody and 31 conduct credit).
The trial court sentenced Daven to the low term of two
years (doubled pursuant to the Three Strikes law) and an
additional five years on the prior serious felony conviction.
Daven’s aggregate sentence was nine years. The court gave
Daven 184 days custody credit (92 actual custody and 92 conduct
credit).
DISCUSSION
Defendants all argue that the trial court abused its
discretion in denying their Romero motions. Destiny and Donald
assert that the trial court violated the constitutional prohibition
against cruel and unusual punishment. Daven argues the trial
court improperly admitted prior bad act evidence. Destiny and
Donald also assert that the abstracts of judgment should be
amended to reflect 154 days of presentence conduct credit. We
address each contention below.
1. Romero Motions
Defendants contend the trial court abused its discretion by
denying their Romero motions to dismiss their prior strikes for
residential burglary. In People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504 (Romero), the California Supreme Court
explained that under Penal Code section 1385, subdivision (a), a
trial court may, in the furtherance of justice, strike or vacate an
allegation or finding under the Three Strikes law that a

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defendant previously suffered a conviction for a serious and/or
violent felony.2 In deciding whether to strike the prior conviction,
the court considers “both of the constitutional rights of the
defendant, and the interests of society represented by the
People.” (Id. at p. 530, quotations and italics omitted.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), the
Supreme Court held: “in ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding
under the Three Strikes law, on its own motion, ‘in furtherance of
justice’ pursuant to . . . section 1385[, subdivision ](a), or in
reviewing such a ruling, the court in question must consider
whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies. If . . . it is reviewing the striking or vacating of such
allegation or finding, it must pass on the reasons so set forth.”
(Id. at p. 161.)
We review the trial court’s denial of defendants’ Romero
motions for abuse of discretion. (Romero, supra, 13 Cal.4th at
p. 504.) The key question on that review is whether the ruling in
question falls “outside the bounds of reason.” (Williams, supra,
17 Cal.4th at p. 164.) The burden is on the party attacking the
sentence to show irrationality or arbitrariness. (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) In the
absence of that showing, the presumption arises that the trial
2 All subsequent citations are to the Penal Code unless
indicated otherwise.

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court engaged in a proper exercise of discretion to achieve
legitimate sentencing objectives. (Id. at pp. 977–978.)
In People v. Carmony (2004) 33 Cal.4th 367, 378, the
Supreme Court explained: The “trial court will only abuse its
discretion in failing to strike a prior felony conviction allegation
in limited circumstances.” “Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to
fall outside the spirit of the very scheme within which he [or she]
squarely falls once he [or she] commits a strike as part of a long
and continuous criminal record, the continuation of which the law
was meant to attack’ [citation], the circumstances where no
reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be even more
extraordinary.” (Ibid.)
We address each defendant’s motion in turn.
a. Destiny
Destiny’s counsel argued that her conduct, which was
nonviolent, did not warrant a 40-years-to-life prison term, and
that a 17 year sentence would be sufficient to punish her and
prevent recidivism. Counsel asserted that the fact the
convictions were all recent indicated there was an opportunity to
rehabilitate Destiny.
The trial court agreed with the temporal proximity but
found it inculpatory. The court opined: “The first was in 2014,
and the next two were two separate residential burglaries in
2015. And all three were residential burglaries of the same
modus operandi as this one. There is just no basis at all, in my
view, to strike the prior strikes. . . . [W]hen you look at the prior
offenses and what they were for, how close in time they are, and
also you look at this particular crime where you have a

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particularly vulnerable victim. She’s in her 80’s and is home
alone, late at night. She experiences aggressive banging on her
door, the rapid and repeated ringing of the doorbell, and hearing
the crashing sound of her gate lock being opened. I just think
there was the threat of great violence, great bodily harm and
even death, potentially, and that it was just a particularly callous
act.”
On appeal, Destiny argues that because she is only 26
years old and three priors were committed in a short three-year
period, the trial court abused its discretion in denying her
Romero motion. She asserts that when her background and
overall criminal record are considered, “it is clear that, although
at the very edge, she does not yet fall within the spirit of the
‘strikes’ laws.” Destiny explains that although her current
offense was serious, she and her brothers “were unarmed and no
one was hurt. Nothing was lost.” Destiny avers that when
compared to the misdeeds of violent recidivists in California, her
offense did not warrant the harsh punishment. She also notes
that the People’s pretrial offer of 12 years in prison reflects the
People’s view that her present offense did not warrant an
extreme 40-years-to-life sentence.
We conclude that the trial court’s decision to deny Destiny’s
Romero motion was not “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra,
33 Cal.4th at p. 377.) Although Destiny was only 26 years old
when she committed the current offense, she had an extensive
criminal history of committing residential burglaries. In
December 2014, November 2015, and December 2015, Destiny
suffered convictions for burglary in the first degree. Residential
burglaries are uniquely dangerous because of the violence they

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might precipitate. “Burglary laws are based primarily upon a
recognition of the dangers to personal safety created by the usual
burglary situation—the danger that the intruder will harm the
occupants in attempting to perpetrate the intended crime or to
escape and the danger that the occupants will in anger or panic
react violently to the invasion, thereby inviting more violence.”
(People v. Thorn (2009) 176 Cal.App.4th 255, 264 (internal
quotation marks omitted).) Nor does the record reflect
impetuosity; rather, she successfully solicited her brothers
participation in the past.
The record shows the court was aware of its discretionary
authority to strike a prior felony conviction allegation in this
case. It also shows the court conducted a thorough analysis of
the relevant factors as mandated by the California Supreme
Court in People v. Williams, supra, 17 Cal.4th 148. We find no
error.
b. Donald
Donald moved to dismiss one of this prior strikes for
residential burglary committed in 2013 and 2014, stressing that
he was only 23 years old when he committed the present crime,
had no violent felony convictions, was in the process of obtaining
his general education degree, and was the father of three
children. He requested the court to strike one strike and
sentence him to the high term doubled, plus 10 years for his two
priors, for a total sentence of 16 years.
The trial court denied Donald’s motion, concluding that
“having considered all the reasons why this motion should be
granted, there just really aren’t any. [Donald’s] two prior strike
convictions were recent in time. One was in 2013 and the other
in 2014. In fact, . . . [Donald] was on parole at the time that he

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committed this offense. And all three of the offenses are of the
same nature in that they’re all first degree residential burglaries.
They all have the potential of great violence.” The court
reiterated that the elderly victim, who was home alone and
armed with a gun, was particularly vulnerable and shaken up by
the attempted burglary. The court also again noted that
residential burglary had the potential for great violence and
bodily harm.
On appeal, Donald reiterates the argument he made below.
He highlights the fact that he and his siblings were unarmed
during the attempted burglary. Donald asserts that because he
would still receive a hefty sentence if the court struck one of his
priors, the court abused its discretion in denying his Romero
motion.
We disagree. The court provided a reasoned analysis that
Donald’s sentence was in the spirit of the Three Strikes Law
given his recidivist tendencies to commit residential burglaries.
Like with Destiny’s motion, the trial court observed that
residential burglary has the “potential for great violence.” And it
noted Defendant’s callousness to commit another while on parole.
We find no abuse of discretion.
c. Daven
Daven sought to strike his 2014 conviction for first-degree
burglary, which was committed three years before his current
conviction shortly after he turned 18. He argued that he was
young, immature, and negatively influenced by his older siblings.
Additionally, Daven was willing to accept a plea deal but the
prosecution would not extend a separate offer to only Daven.
Although the court agreed Destiny had influenced Daven,
the trial court denied his motion because this was the second

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time defendant was invovled in a residential burglary, which was
a serious and dangerous crime. The court stated that defendant
“has engaged in a pattern of violent conduct, which indicates that
he’s a danger to society.”
Again, we conclude the trial court did not abuse its
discretion in denying the Romero motion. We acknowledge
Daven’s youth, but we also observe that the trial court found
Daven’s youth was outweighed by the “truly serious” nature of
the crime in which Daven had a pattern of engaging. The court
noted how harrowing the attempted burglary was for the elderly
victim. The court reiterated that in all residential burglaries,
there is “the possibility of great violence and great bodily injury.”
The record again shows the court was aware of its discretionary
authority to strike a prior felony conviction, shows the court
conducted a thorough analysis of the Williams factors, and did
not abuse its discretion in denying the motion.
2. Destiny and Donald’s 40 and 35 Year Sentences Do
Not Constitute Cruel and Unusual Punishment
Donald and Destiny argue that their sentences of 35 years
to life and 40 years to life, respectively, are grossly
disproportionate punishments for the attempted burglary offense
such that the sentences violate the Eighth Amendment and the
California Constitution.
“The Eighth Amendment prohibits imposition of a sentence
that is ‘grossly disproportionate’ to the severity of the crime.”
(People v. Haller (2009) 174 Cal.App.4th 1080, 1087.) In
California, a punishment violates the state constitution if “it is
so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human
dignity.” (People v. Uecker (2009) 172 Cal.App.4th 583, 600.)

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Successful proportionality challenges are “ ‘exceedingly rare’ “ in
noncapital cases. (Ewing v. California (2003) 538 U.S. 11, 20–21
[defendant’s sentence of 25 years to life for felony theft of golf
clubs under the Three Strikes Law (prior robbery and burglary
felonies) did not violate Eighth Amendment].) “In the rare case
where gross disproportionality can be inferred from (1) the
gravity of the offense and harshness of the penalty, the court will
consider (2) sentences imposed for other offenses in the same
jurisdiction and (3) sentences imposed for commission of the same
crimes in other jurisdictions. [Citation.] ‘[I]t is only in the rare
case where a comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality
that the second and third criteria come into play.’ ” (Haller,
supra, 174 Cal.App.4th at p. 1088.)
Here, a gross disproportionality cannot be inferred when
looking at the offense and penalty. This attempted burglary was
committed late at night, when the homeowner was likely to be
home. Defendants worked as a team to identify the target,
approach, and break into the home. They utilized a getaway
driver and a vehicle without license plates to ensure their escape
and to avoid apprehension. The elderly victim experienced
aggressive banging on her door, rapid and repeated ringing of her
doorbell, and the crashing sound of her exterior gate lock being
opened.
Additionally, Destiny and Donald both had multiple
previous convictions for residential burglary. Despite prison time
served for these priors, they continued to burglarize homes. This
burglary demonstrates that they have not reformed their
criminal behavior. And worse, they have influenced their
younger sibling to engage in the same dangerous criminal

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activity. The habitual offender statutes that enhanced Destiny’s
and Donald’s sentences are directed at this very kind of repetitive
criminal behavior.
Such “habitual offender statutes have long withstood the
constitutional claim of cruel or unusual punishment.” (People v.
Ingram (1995) 40 Cal.App.4th 1397, 1413 [upholding 61-year
sentence for a three strike offender convicted of two counts of
burglary], overruled on other grounds in People v. Dotson (1997)
16 Cal.4th 547, 560, fn. 8.) In discussing recidivist statutes, the
Supreme Court of the United States has stated, “The purpose of a
recidivist statute . . . [is] to deter repeat offenders and, at some
point in the life of one who repeatedly commits criminal offenses
serious enough to be punished as felonies, to segregate that
person from the rest of society for an extended period of time.
This segregation and its duration are based not merely on that
person’s most recent offense but also on the propensities he has
demonstrated over a period of time during which he has been
convicted of and sentenced for other crimes. Like the line
dividing felony theft from petty larceny, the point at which a
recidivist will be deemed to have demonstrated the necessary
propensities and the amount of time that the recidivist will be
isolated from society are matters largely within the discretion of
the punishing jurisdiction.” (Rummel v. Estelle (1980) 445 U.S.
263, 284–285.)
Recidivism in the commission of multiple felony burglaries
poses a manifest danger to society justifying the imposition of
longer sentences for each subsequent offense. While defendants’
criminal histories are not violent, their actions have constituted
grave threats to human life and safety. We conclude that their

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sentences are not so grossly disproportionate as to shock the
conscience.
3. The Court Did Not Abuse Its Discretion in Admitting
Evidence of the Prior Attempted Home Burglary
Joined by Destiny, Daven argues the trial court improperly
admitted evidence of the June 6, 2015 attempted burglary
because it was not sufficiently similar to the charged offense and
the probative value of the evidence was outweighed by its
prejudicial effect. Daven’s challenge involves a two-part inquiry:
(a) does the evidence fall under an exception to the ban on
character evidence under Evidence Code section 1101, and (b) is
the evidence admissible under Evidence Code section 352.
(People v. Foster (2010) 50 Cal.4th 1301, 1328–1329 (Foster).)
a. Evidence Code Section 1101
Under Evidence Code section 1101, subdivision (a),
evidence of specific instances of uncharged prior conduct is
inadmissible to prove that a person acted in conformity with that
conduct. However, that statute permits a court to admit
character evidence to prove intent, identity, or a common plan,
“only if the charged and uncharged crimes are sufficiently similar
to support a rational inference of . . . common design or plan,
[identity] or intent. [Citation.]’ [Citation.]” (Foster, supra,
50 Cal.4th at p. 1328; see Evid. Code, § 1101, subd. (b).)
“[T]he degree of similarity required for cross-admissibility
ranges along a continuum, depending on the purpose for which
the evidence is received. The least degree of similarity is
required to prove intent. A higher degree is required to prove
common plan, and the highest degree to prove identity.” (People
v. Scott (2011) 52 Cal.4th 452, 470.) “[E]vidence of uncharged
misconduct must demonstrate not merely a similarity in the

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results, but such a concurrence of common features that the
various acts are naturally to be explained as caused by a general
plan of which they are individual manifestations.” (Foster, supra,
50 Cal.4th at p. 1328 (internal citations and quotation marks
omitted).) “[E]vidence that the defendant has committed
uncharged criminal acts that are similar to the charged offense
may be relevant if these acts demonstrate circumstantially that
the defendant committed the charged offense pursuant to the
same design or plan he or she used in committing the uncharged
acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Evidence of
“the plan need not be unusual or distinctive; it need only exist to
support the inference that the defendant employed that plan in
committing the charged offense.” (Ibid.)
We conclude the trial court did not abuse its discretion
when it admitted evidence of the uncharged June 6, 2015
attempted burglary to show intent and common scheme or plan.
The uncharged conduct was sufficiently similar to support an
inference that defendants had a common plan of committing or
attempting to commit burglaries on residences together. Both
the charged offense and the 2015 uncharged offense (described in
the fact section above) involved defendants driving to the home
they intended to burglarize, knocking on the victim’s door, and
having a getaway driver wait in the car in front of the victim’s
home. When caught by police shortly after both attempted
burglaries, both Destiny and Daven provided police with similar
explanations for being the vehicle and denied involvement in a
crime.
Daven’s citations to cases that use uncharged acts to prove
identity are inapt here. Identity was not at issue: in the
uncharged case, the witness Frank W. identified Destiny as the

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woman who knocked on the door and identified the car (including
the license plate) in which Destiny and Daven were stopped. The
trial court did not abuse its discretion in admitting the uncharged
act evidence to show defendants’ intent and common scheme or
plan.
b. Evidence Code Section 352
“If evidence of prior conduct is sufficiently similar to the
charged crimes to be relevant to prove the defendant’s intent [or]
common plan, . . . the trial court then must consider whether the
probative value of the evidence ‘is “substantially outweighed by
the probability that its admission [would] . . . create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.)’ [Citation.] ‘Rulings
made under [Evidence Code sections 1101 and 352] are reviewed
for an abuse of discretion. [Citation.]’ [Citation.] ‘Under the
abuse of discretion standard, “a trial court’s ruling will not be
disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.” [Citation.]’ [Citation.]” (Foster, supra, 50 Cal.4th at
pp. 1328–1329.) “Evidence is prejudicial within the meaning of
Evidence Code section 352 if it ‘ “uniquely tends to evoke an
emotional bias against a party as an individual” ’ [citation] or if it
would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause on the
basis of extraneous factors.” ’ [Citation.]” (People v. Cowan
(2010) 50 Cal.4th 401, 475.)
Here, the uncharged act was recent and similar to the
attempted burglary at issue at trial. The uncharged act had
significant probative value to show defendants’ intent in

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approaching the victim’s house in the present case, and a
common plan or scheme for committing residential burglaries.
This probative value was not outweighed by any of the
concerns listed in Evidence Code section 352. The testimony
regarding the uncharged act did not consume undue time or court
resources, occupying only 33 of the 500 pages of reporter’s
transcript. There is nothing in the record to indicate the
uncharged act was likely to confuse, mislead, or inflame the
passions of the jury. The 2015 incident was no more serious than
the charged offense and did not involve violence.
Furthermore, jury instructions directed the jury on how to
properly use this evidence. The court instructed the jury that
they may not conclude from the evidence that defendants had a
bad character or that they were disposed to commit crime. The
court also informed the jury that it may only consider the
evidence for the limited purpose of identity, intent, or common
plan. “Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the
court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834,
852.) The court did not abuse its discretion in admitting the 2015
uncharged similar conduct.
4. The Abstracts of Judgment Must Be Amended to
Reflect 154 Days of Presentence Conduct Credit for
Defendants Donald and Destiny
The trial court awarded defendants Destiny and Donald
total of 186 days custody credit each, which was composed of 155
days of actual custody and 31 days of conduct credit. The trial
court awarded defendants 31 days of conduct credit, reflecting 20

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percent of their actual days in custody.3 On November 17, 2017,
the trial court denied Destiny’s ex parte motion to recalculate her
presentence custody credits, stating that defendants’ presentence
custody credits were properly limited to 20 percent based on
defendants’ prior strike conviction.
Destiny and Donald argue they are entitled to 154 days of
presentence custody credit under section 4019. The People
concede this point and we agree. Pursuant to section 4019,
subdivision (f), Destiny and Donald are entitled to two days of
presentence conduct credit for every two days of actual time
spent in custody. Thus, they are each entitled to 154 days of
presentence conduct credit in addition to their time served credit,
for a total of 309 days of credit. We remand for the trial court to
amend their abstracts of judgment accordingly.
DISPOSITION
The judgment is modified to reflect that Destiny and
Donald each have 154 days of presentence conduct credit in
addition to the 155 days of time served credit, for a total of 309
days of credit. The superior court is directed to modify the
abstracts of judgment accordingly and to forward a certified copy
/ / /
/ / /
3 In allotting defendants their good time credit, it appears
that the trial court relied on Penal Code section 667,
subdivision (c)(5), which limits in-prison conduct credits to 20
percent for three-strikers. This statute applies only to in-prison
credits and thus did not limit presentence custody credits.

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of the amended abstract to the Department of Corrections and
Rehabilitation. We affirm the judgments on all other grounds.
RUBIN, Acting P. J.
WE CONCUR:
GRIMES, J.
GOODMAN, J.*
* Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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