Filed 9/12/16 P. v. Ojeda CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL AN DREW OJEDA,

Defendant and Appellant. B266149

(Los Angeles County Super. Ct. No. KA096499)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack P.

Hunt , Judge . Affirmed.

John Doyle, under appointment by the Co urt of Appeal, for Defendant and

Respondent.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,

and Amanda V. Lopez, Deputy Attorney s General , for Plaintiff and Respondent.

__________________________2

Gabriel Andrew Ojeda appeals the one

- year state prison sentence imposed after he

pleaded no contest to assault by means likely to produce great bodily injury. Ojeda

contends the court erred in failing to give him credit for the time he was in custody while

the case was on remand from a prior appeal. We affirm.

PROCEDURAL BACKGROUND 1

After he was convicted of aggravated assault and simple assault in October 2012

, Ojeda moved for a new trial b ased on juror misconduct . The trial court denied the

motion . We vacated the trial court’s order and remanded the matter for a new trial.

( People v. Ojeda (Sept. 16, 2014, B246956) [nonpub. opn.].) Our remittitur issued on

November 1 7 , 2014.

After the matter was remanded, Ojeda pleaded no contest to assault by means

like ly to produce great bodily injury ( Pen. Code, § 245, subd. (a)(1)). 2 On February 10,

2015 the court sentenced Ojeda to state prison for one year (one

- third the mid dle term) to

run conse cutive to a four

- year sentence imposed in February 2013 in an unrelated

burglary case (KA095637

- 02). The court did not award Ojeda presentence custody credit

for the time between the reversal of his conviction by this court and his sentencing after

the no contest plea , explaining, “The d efendant is a sentenced prisoner.”

DISCUSSION

Presentence custody credit is generally authorized by section 2900.5

,
subdivision (a), which provides, “In all felony and misdemeanor convictions, either by

plea or by verdict , when the defendant has been in custody, includin g, but not limited to,

any time spent in a jail

. . . , all d ays of custody of the defendant

, including days served as

a condition of probation in compliance with a court order, credited to the period of

co nfinement pursuant to Section 4019,

. . . shall be credited upon his or her term of

imprisonment

. . . .” Section 2900.5 , subdivision (b), however, limits the circumstances

1 We omit a statement of facts because they are not relevant to Ojeda’s sentencing
claim.

2 Statutory references are to this code.3

in which presentence custody credit may be awarded: “For purposes of this section

, credit shall be given only where the custody to be credited is attributable to proceedings

related to the same conduct for which the defendant has been convicted. Credit shall be

given only once for a single period of custody attributable to multiple of fenses for which

a consecutive sentence is imposed. ”

I n his opening brief Ojeda argued there was nothing in the record demonstrating

he had waived his right to presentence custody credit. Ojeda, however, was not entitled

to presentence custody credit b ecause he was incarcerated for a separate offense while the

case was on remand. (See In re Rojas (1979) 23 Cal.3d 15 2, 155

- 156 [ “defendant is not

to be given credit for time spent in custody if during the same period he is already serving

a term of incarc eration”] ; see also People v. Bruner (1995) 9 Cal.4th 1178, 1180

[section 2900.5 was not intended “to allow credit for a period of presentence restraint

unless the conduct leading to the sentence was the true and only unavoidable basis for

the earlier cust ody ”].)

Ojeda changed tactics in his reply brief . Acknowledging Rojas governs, Ojeda

argued it was clear in that case the defendant was in custody in connection with one

crime when he stood trial for the subsequent crime ( see In re Rojas

, supra , 23 Cal.3 d at

p. 154 )

, while here there wa s nothing in the record other than the court’s description of

Ojeda as a “sentenced prisoner” to establish he was still in custody for the burglary

conviction after t he instant case was returned to the trial court on remand

.
Even if not forfeited because Ojeda raised it for the first time in his reply brief (see

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 3 35, 408), the argument is

without merit. It is axiomatic that an appealed judgment is presumed correct. “ ‘ All

intendments and presumptions are indulged to support it on matters as to which the

record is silent, and error must be affirmatively shown

. . . . ’” ( Denham v. Superior

Court (1970) 2 Cal.3d 557, 564 ; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,

1133; People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) To overcome this

presumption, the appellant must provide an adequate appellate record demonstrating

error. ( Maria P. v. Riles (1987) 43 Cal.3 d 1281, 1295

- 1296 .) “ [ I ] f the particular form o f4

record appears to show any need for speculation or inference in determining whethe r

error occurred, the record is inadequate. ” (Eisenberg et al., Cal. Practice Guide: Civil

Appeals and Writs (The Rutt er Group 201 5) ¶ 4:43, p. 4

- 11 .) If the record is i nadequate,

we affirm the appealed judgment. ( Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620,

fn. 1 [burden is appellant’ s to provide adequate record on appeal to demonstrate error;

failure to do so “ precludes an adequate review and results i n affirmanc e of the trial

court’ s determination ” ]. ) By failing to identify anything in the record demonstrating he

was not still in custody for his conviction on the burglary charge while the matter was on

remand, Ojeda has not demonstrated error.

DISPOSITION

The j udgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

GARNETT , J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.