Filed 10/9/15 P. v. Olmedo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. GUSTAVO BARRERA OLMEDO, Defendant and Appellant. G049984 (Super. Ct. No. 10CF2532)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
Sheila F. Hanson, Judge. Affirmed as modified

.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and App ellant.

Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 INTRODUCTION Gustavo Barrera Olmedo appeals from the judgment entered after a jury found him guilty of attempted premeditated murder and shooting at an occupied motor vehicle, in connection with a shooting incident that occurred on September 9, 2010 at
Si gler Park in Westminster. The jury also found true enhancement allegations that Olmedo intentionally and personally discharged a firearm in the c ommission of the
offense s and committed the offense s in furtherance of criminal street gang activity by the
We st Trece criminal street gang. Olmedo contends his convictions must be reversed “because the only evidence that he was the shooter

— or even present at the shooting

— came from admitted accomplices and no sufficient corroborating evidence connected [Olmedo] w ith the crimes.” Olmedo also argues he i s entitled to three additional days of presentence custody credits

.

We affirm. We co n clude independent evidence reasonably tending to connect Olmedo to the commission of the charged offenses as the gunman corrobor ated the accomplices’ testimony . That independent evidence included gang expert witness testimony and the victim’s testimony establishing Olmedo’s motive, Olmedo’s testimony establishing opportunity, eyewitness testimony describing the shooter coupled wit h a booking photograph of Olmedo , taken a few days after the shooting, and evidence of false or misleading statements that Olmedo made to the police officers who were investigating the shooting. As was the case in People v. Vu (2006) 143 Cal.App.4th 1009, 1013, “[t]he corroboration evidence was at least a s strong as that found by the California Supreme Court in People v. Szeto (1981) 29 Cal.3d 20

. . . to be sufficient to corroborate the accomplice testimony.”

As t o Olmedo’ s presentence custody credits argument, t he Attorney General concedes that Olmedo is entitled to three additional days of presentence custody
credits. We will direct the trial court to modify the judgment accordingly.3 FACTS 1

I.
N ONACCOMPLICE E VIDENCE OF G UILT West Trece (West) is a “well

- documented” criminal street gang in the C ity of Westminster. Sigler Park is located within West’s claimed territory and is its members’ “primary hang out or gathering point.” Members and affiliates of West particularly congregate near the handball courts at Sigler Park. A gang expert witness testified that in his opinion based on his investigation , both Olmedo and Guadalupe Cuevas were members of West. (Cuevas admitted to being an active participant in West
in his guilty plea.) 2

Orphans is a Hispanic criminal street gang that is one of West’s rivals. On September 9, 2010, Enrique Zacat enco , who was a member of Orphans, started drinking
alcohol around 3:00 p.m. By 5:30 p.m. , he had consumed “like , an 18 pack ” o f beer and
was “ a little tipsy.” Around 6:30 p.m., h e was driving his black Toyota Camry in the area of Sigler Park and became bored so he decided to drive around Sigler Park to “see what was going on.”

Zacat enco knew Sigler Park was inside West’s clai med territory and that was where West’s members would often hang out; he had seen them there. He also knew it is “disrespectful” for a gang member to go inside a rival gang’s claimed territory , and , if a member does so and causes trouble, the member will “ [ p ] robably get dealt with.”
Zacat enco testified that such a disrespectful act could result in violence in the form of a

1 We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.) 2 As discussed post , the trial court instructed the jur y that Cuevas was an accomplice in the commission of the charged offenses.4

beating, stabbing , or shooting. He explained that if a member’s gan g is disrespected , and
the member fails to retaliate for the disre spectful act , it is a problem “[ b ] ecause you should be doing something about it ” and “you’re going to lose power.” On the other hand, causing trouble and committing crimes gain the perpetrator more recog nition
with in his or her own gang as it proves “you know, like you can hang.”

When Zacat enco went into Sigler Park, he saw five or six “people from
West.” After Zacat enco drove around in the park three times , “they thr [ e ] w up West
Trece , ” meaning they yelled out th eir gang name. Zacat enco said he did not know why, but he “threw out [his] neighborhood” by yelling back “Orphans , ” and “ [ t ] hat’s what started it.” He said he knew his conduct might cause trouble and claimed he then tried to
leave.
Zacat enco said “they” started running toward his car and he accelerated.
He said , “they threw some objects at [ his ] car , ” which shattered his windshield , and he
ducked down. He looked out the driver’s side window and saw a male pointing a gun at him; he did not see the gunman’s face. Zacatenco accelerated hi s car and heard shots.
He saw a brown

- colored mini v an speed away.

Later that night, Zacat enco was pulled over by the police for driving under
the influence. A police officer observed two bullet entry holes on the driver’s side doorframe of the Camry a nd that the rear passenger window was shattered or broken.

On September 9, 2010, Tammy Vo , who lived near Sigler Park , was driving home when she saw a man, standing outside of a brown

- colored mini van on the
pas senger side, holding a black gun , and aiming at a black Camry. She heard at least
three shots a nd saw the driver of the Camry drive away; she also saw the shooter run into
the mini van and the mini van drive away.

Vo did not see the shooter’s face but she described him as Hispanic and
h aving a medium to a “little heavy build” and five feet seven inches to five feet 11 inches tall; she also described him as “thick,” “ [ a ] little chubby,” and “kind of heavy , ” weighing5

maybe 165 to 180 pounds. Vo said the shooter had thick hair. She said t he front seat passenger in the mini van had much thinner hair than the shooter. A booking photograph , taken of Olmedo on September 16, 2010 , depicted a male with facial hair and short , curly
hair. A copy of the booking photo graph was admitted into evidenc e. ( Olmedo testified that at the time he was arrested, he was six feet one inch tall and weighed 320 pounds, but he “wasn’t too sure

. ” )

Detective Andrew Stowers of the Westminster Police Department
interviewed Peter Peck 3 and learned from him that Olme do was not only involved in the shooting, but the gunman. Stowers set up a recording device on Peck’s phone and had
Peck call Olmedo. A male answered the phone , and Peck told him that he (Peck) was in trouble as the police had come to his house and had identified him (Peck) as involved in the shooting at Sigler Park

. Peck also told the male that he too had been identified. The male responded by telling Peck to “get off the phone” and “don’t talk on the phone , ” then said goodbye.

On September 15, 2010, Olmedo was arrested in Victorville. On September 16, Officer William Drinnin of the Westminster Police Department
interviewed Olmedo. Olmedo told Drinnin that before the shooting occurred, he was dropped off at Sigler Park by Peck and Cuevas; Peck was driving a mini van. Olmedo
told Drinnin h e was going to the park to meet some friends; he was evasive about the identity of the friends whom he was meeting. He t old Drinnin that he was walking through the park when he heard gunshots. Olmedo refused to answer some of Drinnin’s questions. He admitted knowing several people from West and knowing Cuevas.

3 As discussed post , the trial court instructed the jury that Peck was an accomplice in the commission of the charged offenses.6 II.
A CCOMPLICE T ESTIMONY The trial court instructed the ju ry that Peck and Cuevas were accomplices to the crimes of attempted murder, shooting at an occupied motor vehicle, and negligent discharge of a firearm (the lesser included offense of shooting at an occupied motor vehicle). Peck entered into a plea deal i n which he pleaded guilty to “certain charges , ” including aiding and abetting shooting at an occupied motor vehicle and admitt ing the gang enhancement attached to that offense. Cuevas also entered into a negotiated plea agreement that included his plead in g guilty to aiding and abetting an assault with a firearm and active participation in a criminal street gang.

A. Peck’s Testimony Peck testified that about a year before the shooting incident, he had met Olmedo through an acquaintance for the purpose o f purchasing marijuana from Olmedo. “After a while,” he and Olmedo would often hang out, smoke marijuana , and rap to music. He got to know Cuevas through Olmedo and the three of them hung out “ quite a
bit. ” In September 2010, Peck was living at his fiancée’s apartment near Sigler
Park ; Olmedo and Cuevas lived nearby. Peck came to suspect Olmedo and Cuevas were affiliated with a criminal street gang. Sho r tly after a West affiliate got out of juvenile hall, Olmedo’s and Cuevas’s demeanor changed. Th ey used to hang out and party, but
after the West affiliate “came out,” Olmedo became “more hardcore,

. . . an enforcer

- type.” Olmedo’s “talking” changed from “let’s hang

- out” to “we’ve taken care of this guy” and to discussing violent things. Peck becam e uncomfortable , but felt he could not suddenly cut ties with Olmedo and Cuevas because it “puts up red flags.” Peck7

planned to buy one last bag of marijuana from Olmedo and tell him it was the last time because he could not afford it anymore ; th ey would therefore no longer have a reason to hang out together.

O n September 9, 2010, Peck called Olmedo to buy some marijuana.
Around 10:30 a.m. or 11:00 a.m., Olmedo brought some marijuana to Peck’s apartment
and Olmedo, Peck, and Cuevas smoked marijuana tog ether

.

Peck’s neighbor asked Peck if he could drive to the smoke shop to buy cigare ttes for her . He agreed to do that , but told her he needed money for gas. She gave him gas money. Peck, Cuevas , and Olmedo went to a gas station. Peck drove a

tan

- col ored minivan; Cuev a s sat in the front passenger seat and Olmedo sat in the
backseat. Olmedo received a phone call; he spoke on the phone in Spanish for about a minute. He said he needed to go to Sigler Park to collect some money . Peck drove to Sigler Park , and dropped off Olmedo and Cuevas. Peck parked. A minute or two later, they got back into the mini van. Olmedo asked for a ride to his house. Peck drove to Olmedo’s house. Olmedo went inside the house while Cuevas stayed in the mini van. After se veral minutes , Olmedo came out of the house , and got in to the mini van . He
asked Peck to take him back to Sigler Park; Olmedo was not carrying anything and did not volunteer why he needed to return to Sigler Park

.

Peck backtracked to Sigler Park. At a stop sign, a black car almost hit the
front end of the mini van. Olmedo and Cuevas got out of the mini van. Olmedo had a
black revolver in his hand , which he pointed at the black car. Peck heard at least six gunshots. When the gunshots stopped, Peck open ed his eyes and st e pped on the gas to get out of there. After Peck saw Cuevas trying to get into the mini van , he slowed down to let Cuevas get in , and then drove bac k to his apartment.

Cuevas told Peck that he did not “need to be saying anything about this”
and that C uevas knew “what happens to people that say stuff about this.” He also asked8

Peck where he could “stash some weed” and Peck t estified that he said , “there was my van or he can put it in with my cans or whatever.” 4

About 15 to 20 minute s later, Olmedo showed up at Peck’s apartment. He said that he was sorry and had to take care of business. He thereafter acted as if nothing had happened; Cuevas was also “hanging out like if nothing happened.”

Peck learned the gun had been hidden “wi thin [his] cans.” When he found out the gun had bee n hidden there, Peck told Cuevas he had a family , “ [ t ] his ain’t cool , ” and “ [ t ] his ain’t working.” Olmedo told Peck, “ [s] hut up. If it gets found, somebody will go down for it. It will be out of here by tomorrow.” B efore Olmedo left, he told Peck that “i f the police do show up, [to] know that [Peck wa s] not supposed to say anything. ”
Olmedo also said, “[t]ell them whatev er” and “[n] ot to talk about this on the phone or anything like that or in text or anything.”

The following day, Peck was informed by an unidentified source not to worry because the gun had been “taken care of” and had been sold.

On September 14, 201 0, police detectives came to Peck’s apartment. Initially , Peck lied to them, but eventually told the detectives that Olmedo was the
shooter. The detectives asked him to call Olmedo , while the y listened . Peck called
Olmedo , and told him that the police h ad just been at his house. Olmedo asked , “for what?” and Peck said , “for the incident at the park.” Olmedo told Peck , “I told you not to discuss that on the phone , ” and hung up.

B. Cuevas’s Testimony Cuevas’s account of the events of the evening of S eptember 9, 2010 , largely agreed with Peck’s account. Cuevas testified that he had met Olmedo earlier in

4 The record does not explain what Peck meant i n using the word “cans.”9

2010 and , at some point, smoked marijuana almost daily with Olmedo and Peck. Cuevas had several family members who were affiliated with West, although Cuevas denied being a member or active participant in West himself. He saw Olmedo hanging out with “people from West.” He knew Olmedo would “back up” members of West, meaning he would help them whenever they need ed help. At some point bef ore September 9, 2010, Olmedo told Cuevas he had purchased a gun.

Like Peck, Cuevas testified that on September 9, 2010, he, Peck , and Olmedo were hanging out at Peck’s apartment before they left to go to a gas station in Peck’s tan mini van. While driv ing away from the gas station, Olmedo received a phone
call and had a co nversation in Spanish. Olmedo thereafter asked Peck to take him to his (Olmedo’s) house . When the y got to the house , Olmedo went inside for a minute. When
he returned to the mini van , he was not carrying anything , and asked to be taken to Sigler
P ark and appeared to be in hurry . Cuevas asked Olmedo why, and Olmedo told him , “[n]ot to worry about it.”

As Peck drove the short distance back to Sigler Park, Cuevas felt something
bad w as going to happen. When they got there, Olmedo got out of the mini van. Cuevas stepped one foot out of the mini van. Olmedo drew a firearm, pointed it toward a black

car , and fired four or five shots. Peck started to drive away and Cuevas got back into the
mini van. Olmedo did not get back into the mini van.

Peck drove back to his apartment. Olmedo showed up at the apartment
minutes later. Cuevas believe d the gun was hidden outside the apartment.

At an unspecified later time, Olmedo told Cuevas he had sold the gun. Cuevas also learned that the person inside the black car might have been a member of Orphans. At the time he was booked, Cuevas was five feet 11 inches tall and weighed 200 pounds. Cuevas told a police detective that he knew Olmedo ha d a firearm.10 III.
O LMEDO ’ S T ESTIMONY Olmedo testified in his defense. In September 2010, he both smoked marijuana daily and sold it on a daily basis along with Cuevas and Peck. He engaged in drug sales at Sigler Park. H e knew Cuevas was a participant in West, but did not know
whether he was a member. Olmedo denied being a member of West or actively participating in its activities.

On September 9, 2010, Olmedo was with Cuevas and Peck at Peck’s residence. They left the residence to deliver a sack of marijuana at a local restaurant and stopp ed at a gas station. En route, Olmedo received a telephone call from Cuevas’s
uncle. He wanted to buy marijuana and have it delivered at the handball courts at Sigler
Park. Olmedo did not have t he marijuana on hand so Peck drove Olmedo and Cuevas to Olmedo’s residence to get it. Olmedo denied picking up a gun, owning a gun, ever shooting a gun at a car or a person , or telling Cuevas that he had a gun.

When Olmedo got back into the mini van, he sat in the backseat and Cuevas
sat in the front passenger seat. Olmedo told Peck to drive him to the handball courts at Sigler Park. Peck dropped him off short of reaching the park because Olmedo though t Cuevas’s uncle would be angry if he and Cuevas we re together.

Olmedo walked to the park, met Cuevas’s uncle at the handball courts, and
sold the marijuana to him. As Olmedo was walking away, he heard gunshots. He was scared and ran through the park. He saw his friend’s mother looking for her son an d she
offered Olmedo a ride; he accepted.

Olmedo went back to his residence that day. He went to Peck’s residence
two times after the shooting , but he denied ever threatening Peck, or telling Peck not to
talk to the police. Olmedo testified that he later went to Victorville because his fiancée wanted him to get away from drug use as it was bad for his child. Olmedo stated that at11

the time he was arrested, he was “roughly” 320 pounds and six feet one inch tall, but he
“wasn’t too sure.”
BACKGROU ND

Olmedo was charged in an information with one count of attempted murder
in violation of Penal Code sections 664, subdivision (a) and 187, subdivision (a); the information alleged that the attempted murder offense “was committed willfully, deliberately and with premeditation within the meaning of Penal Code Section 664(a).”
Olmedo was also charged with on e count of shooting at an occupi ed motor vehicle in
violation of Penal Code section 246 and one count of carrying a loaded unregistered firearm in publ ic in violation of former Penal C ode section 12031, subdivision (a)(1) and (2)(F). As to all counts alleged against Olmedo, the information asserted those offenses were committed “for the benefit of, at the direction of, and in association with
West Tre ce, a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang.” (Some capitalization omitted.) As to the attempted murder offense, the information alleged that, pursuant to Penal Code

sec tion 12022.53, subdivision (c) , and within the meaning of Penal Code sections 1192.7
and 667.5 , Olmedo intentionally and persona l ly discharged a firearm during the commission and attempted commission o f that offense. As to the count of shooting at an

occu pied motor vehicle, the information alleged , pursuant to Penal Cod e section 12022.5,
subdivision ( a), and within the meaning of sections 1192.7 and 667.5, that Olmedo personally used a firearm in the commission and attempted commission of tha t offense.

The trial court dismissed the offense of carrying a loaded unregistered firearm in public after granting the prosecution’s motion to dismiss it.

The jury found Olmedo guilty of attempted premeditated murder and shooting at an occupied motor vehicle. Th e jury found true all enhancement allegations
as to those offenses.12 The trial court sentenced Olmedo to a total prison term of 35 years to life. Olmedo appealed.
DISCUSSION
I.

I NDEPENDENT E VIDENCE C ORROBORATED THE A CCOMPLICES ’ T ESTIMONY C ONNECTING

O L MEDO TO THE C OMMISSION OF THE C HARGED O FFENSES AND THE T RUTH OF THE A TTENDANT E NHANCEMENT A LLEGATIONS

. Olmedo argues the prosecution presented insufficient evidence to
corroborate the testimony of Peck and Cuevas, who , as the trial court instructed the ju ry , were accomplices to the commission of the charged offenses, within the meaning of
Penal Code section 1111

. 5 Olmedo’s argument lacks merit.

Penal Code section 1111 provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely sh ows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

In People v. Williams (2013) 56 Cal.4th 630, 678

- 679, the California Supreme Court explained: “The law on the corroboration of accomplice testimony is well established: ‘“The trier of fact’s determination on the issue of corroboration is
bi nding on the reviewing court unless the corroborating evidence should not have been

5 The jury was given CALCRIM No. 335 and thereby instructed that Peck and Cuevas were accomplices to the charged offenses and that the jury could not convict Olmedo of the charged offenses or find true any attendant enhancemen t allegation, based on an accomplice’s statement or testimony unless (1) such statement or testimony was supported by other independent evidence that the jury believed (2) which evidence tended to connect Olmedo to the commission of the charged offenses. Olmedo does not argue on appeal that there was any instructional error at trial.13

admitted or does not reasonably tend to connect the defendant with the commission of the crime.”’ [Citation.] ‘“The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice ’ s testimony, tend to connect the defendant with the crime.”’ [Citation.] ‘The evidence is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.”’ [Citation.] ”

Olmedo does not contend any of the corroborating evidence was inadmissible . Furthermore, the c orroborating evidence reasonably tended to connect Olmedo with the commission of the charged offenses and the truth of the attendant enhancement allegations

. E vidence independent of the accomplices ’ statements or testimony established Olmedo’s motive and opportunity to commit the charged offenses by showing Olmedo was present at the scene of the shooting involving a rival gang member disrespecting Olmedo’s gang. A gang expert’s testimony showed that on the day of the shooting , Olmedo was a West member and was in the company of Peck and Cuevas, who , the gang expert opined , was also a West member

. Zacat en co testified that on the day of the shooting, he was a member of Orphans, which is a rival of West, and
drove around Sigler Park

— a place within West’s claimed territory, which he knew to be a main gathering place for West members . Zacat enco testified that he, inter alia, yelled out “Orphans” at “people from West,” acknowledging that such a provocative move would likely result in some form of retaliation that might includ e being shot

. Olmedo
testified that s hortly before the shooting, he received a phone call and then had Peck drive
him home before he direct ed Peck to drive him to Sigler Park. Olmedo admitted being at Sigler Park at the time of the shooting. ( People v. Vu , supra , 143 Cal.App.4th at p. 1022 [“A defendant’s own testimony may be sufficient corroborative testimony

. ”].)14 In addition, independent evidence in the form of eyewitness testimony was
sufficient to corroborate the accomplices’ testimony that Olmedo not only committed the charged offenses, he was the gunman. Olmedo admitted that he wa s driven to Sigler Park by Peck in Peck’s brown minivan. Vo testified she saw a brown minivan near a black Camry and that inside the minivan , there was a driver and a front seat passenger . She
also saw a man standing outside the minivan, aiming a gun at the Camry before firing several times. (Zacat enco testifie d he was driving a black Camry that evening .) Vo described the appearance of the gunman as, inter alia, having short , thick hair and being

“ chubby. ” A booking photograph , taken of Olmedo about a week after the shooting , was shown to the jury and admitted into evidence. Thus, the jury was in the position to compare Vo’s description of the gunman , the accomplices, and Olmedo’s booking photograph. Additional independent evidence supported the find ing that Olmedo gave false or misleading statements about the shooting. ( People v. Vu , supra , 143 Cal.App.4th at p. 1022 [a defendant’s “false or misleading statements made to authorities may constitute corroborating evidence”].) In a police interview, Olmedo denied receiving any call while riding in Peck’s minivan on September 9, 2010. At trial, Olmedo testified that
he had receive d a call at that time from Cue vas’s uncle to purchase some marijuana from
Olmedo and deliver it at Sigler Park. Drinnin te stified that in an interview of Olmedo regarding the shooting, Olmedo was evasive and refused to answer some questions.

The corroborating evidence here was at least as strong as that held to be
sufficient in People v. Szeto (1981) 29 Cal.3d 20. In Peop le v. Szeto , members of an Asian street gang sought revenge against a rival gang by firing guns into a crowded restaurant where rival gang members were believed to be eating. ( Id. at p. 26.) Several bystanders were killed. ( Ibid .) The defendant was con victed of being an accessory to a felon for his role in disposing of the weapons. ( Ibid .) An accomplice testified that on the morning after the shooting spree, the defendant brought the killers food, placed the guns1 5

in his car, drove to a spot along San Francisco Bay, and threw the guns in the water. ( Id

. at p. 27.)
In People v. Szeto , c orroborating testimony evidence established (1) the defendant was a member of the Joe Boys gang; (2) Joe Boys was a rival of the Wah Ching and Hop Sing gangs, and the ri valry had erupted into warfare; (3) Wah Ching and Hop Sing gang members had killed a Joe Boys gang member; (4) the defendant attended the funeral of the fellow gang member killed by the rival gangs; (5) on the morning after the restaurant killings, the def endant brought food to the house where the killers were staying; and (6) the guns used the previous night were inside the house when the defendant brought the food. ( People v. Szeto , supra , 29 Cal.3d at p. 28.) The California Supreme Court held this test imony established the defendant had a motive and the opportunity to aid the killers and therefore was sufficient corroboration of the accomplice testimony. ( Ibid .)
II.
O LMEDO ’ S P RESENTENCE C USTODY C REDITS S HOULD B E I NCREASED

. Olmedo argues his presentence custody credits should be increased by three days

. At sentencing, he was awarded 1,496 days of custody credit consisting of 1 , 301 actual days plus 195 days of conduct credit pursuant to Penal Code section 2933.1. Olmedo, however, had served 1 ,304 actual days in presentence custody, not 1,301 days, as he was arrested on September 16, 2010 , and was sentenced on April 11, 2014

.

In the respondent’s brief, the Attorney General agrees that Olmedo had served 1,304 actual days in presentence custod y and that the abstract of judgment should be corrected accordingly. As Olmedo is entitled to 1,304 days of credit for actual time served, and to 195 days of good time/worktime credit, we direct the trial court to correct the abstract of judgment to refle ct the correct number of days of presentence custody
credit s to which Olmedo is entitled. (See People v. Magallanes (20 09 ) 173 Cal.App.4th 529, 537.)16 DISPOSITION We direct the trial court to modify the judgment to credit Olmedo with a total of 1,499 day s of presentence custody credits, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.