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People v. Gonzalez4/11/1983
"serially," considering each charge in
turn, and one which requires them to inspect the offenses "together." In either case, the principle of reasonable doubt requires an acquittal of the greater offense if the prosecution has not sustained its burden of proof (see People v. Dewberry, supra, 51 Cal. 2d at p. 556); in both situations, the jury knows that it must choose the lesser offense if it entertains any reasonable doubt as to the greater. Therefore, once CALJIC No. 17.10 is given, a further instruction of a modified version of CALJIC No. 17.11 would be merely cumulative, and is unnecessary.
III
Presentence Custody Credits
Lastly, both appellant and the People agree that appellant's in custody and conduct credits were calculated incorrectly. Appellant was arrested for the instant offense on September 13, 1979, and remained in custody until October 22, 1979, when he posted bail. He disappeared in the middle of his trial, but was again arrested on January 3, 1982, and held in custody on this offense until he was sentenced on April 26, 1982. Thus, he should have received 154 days of custody credit and 77 days of conduct credit for a total of 231 days. (Pen. Code, §§ 2900.5, 4019; People v. Sage (1980) 26 Cal. 3d 498 [165 Cal. Rptr. 280, 611 P.2d 874].) The judgment must be modified to correct this error. (People v. Jackson (1981) 117 Cal. App. 3d 654, 659-660 [172 Cal. Rptr. 856]; People v. Wilson (1978) 83 Cal. App. 3d 982, 992 [148 Cal. Rptr. 47].)
The judgment is modified to provide that appellant has 154 days of custody credit and 77 days of conduct credit. As so modified, the judgment is affirmed.
Disposition
The judgment is modified to provide that appellant has 154 days of custody credit and 77 days of conduct credit. As so modified, the judgment is affirmed.
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