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People v. Rodriguez10/5/2004
rt made it clear that the verdict was on the murder charge, she said her verdict was guilty. There was no indication of hesitation, confusion, or coercion.
As to the poster containing excluded photographs, the trial court acknowledged that the defense objection to the photographs was that appellant was laughing in some of them. The court doubted whether such photographs would have had much effect in the case, in light of the blood alcohol and evidence from the criminalists.
*9 The declaration regarding Mrs. Rodriguez's observations of the poster board was vague as to the precise location of the board, the time frame, and the location of the jurors when she saw the poster board. Appellant failed to make a prima facie showing requiring a hearing on the petition and the trial court did not err in denying it.
V
Respondent argues the trial court erred in awarding appellant custody credits since he was convicted of murder, citing section 2933.2, subdivisions (a) and (c). In People v. Donan (2004) 117 Cal.App.4th 784, 790, we concluded section 2933.2 prohibits all conduct credit for murders where the crime was committed after that prohibition took effect in 1998. Here, the crime was committed in 2003 and thus appellant was not entitled to conduct credit. (Ibid .)
At the sentencing hearing, the prosecutor argued that any defendant convicted of murder is not entitled to credits, whether or not sentence on that count is stayed under section 654. The court asked her if this was correct and she said it was. The trial court then said: "But, otherwise, he does get credits; is that right? Is that good time correct, 36? Or is it more than 36?" Defense counsel then said that he had calculated the credit at 15 percent and the prosecutor said "That would be my belief for the local custody credits." The abstract of judgment reflects 246 days of actual custody credits and 36 of local conduct credit.
We agree with respondent that appellant was not eligible for the 36 days of local conduct credit under section 2933.2, and modify the judgment accordingly.
DISPOSITION
The judgment is modified and affirmed as modified. The abstract of judgment is amended to reflect only 246 days of actual custody credits.
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