Filed 2/17/23 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL DAVID GARCIA,

Defendant and Appellant.

F082157

(Super. Ct. No. F20903780)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. 

Hamilton, Jr., Judge.

Jennifer A. Gibson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Appellant Michael David Garcia appeals following his conviction for and 

sentencing on one count of making criminal threats (Pen. Code, § 422)1 and one count of 

trespassing (§ 622, subd. (m)) with the enhancements that he had a prior serious felony 

(§ 667, subd. (a)(1)) and “strike” conviction within the meaning of the “Three Strikes” 

law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). Appellant challenges the trial 

court’s sentencing decisions regarding whether to dismiss appellant’s prior conviction, 

certain fines and fees imposed, and the credits provided for appellant’s preconviction 

incarceration. Appellant also challenges the instructions given and evidence submitted 

with regard to his trespassing conviction. For the reasons set forth below, we reverse the 

trespassing conviction and affirm the remaining judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant had an altercation with his neighbors in June 2020. His neighbors, the 

Whitakers, owned their property and were having their daughter and her family, the 

Tates, over to visit. That morning, Ms. Tate had seen appellant pacing on his property 

and yelling, “I’m gonna get you ...,” at her. Later in the afternoon, while the family was 

outside again, Mr. Tate saw appellant pacing around the property line while yelling and 

cursing. The family went inside.

A short time later, Mr. Whitaker saw appellant drive up Mr. Whitaker’s driveway. 

Mr. Whitaker went to the front door to speak with appellant. When Mr. Whitaker opened 

the door, appellant began yelling that the two needed to settle things and making 

comments about Mr. Whitaker’s daughters. Mr. Whitaker told appellant to leave. After a 

few minutes, with appellant not leaving, Mr. Whitaker returned inside his house and 

Mr. Tate came outside. Appellant began yelling at Mr. Tate and threatening him. 

Mr. Tate told appellant to leave several times until, seeing appellant reach behind his 

back, Mr. Tate responded by pulling a gun.

1 Undesignated statutory references are to the Penal Code.
3.

After further threats, appellant left the property. Appellant did not go far, 

however, stopping at the public road to shout further threats before eventually returning 

to his property. Once back on his property, appellant again began pacing the boundary 

between the two properties, several times crossing in between trees that separate a portion 

of the two properties, while yelling at Mr. Tate. About 10 minutes later, and roughly 

20 to 25 minutes after appellant first came to the Whitaker residence, law enforcement

arrived and arrested appellant.

Appellant was charged with the felony of making criminal threats (§ 422; count 1) 

and the misdemeanor of trespassing (§ 602, subd. (m); count 2). The information further 

alleged appellant had a prior serious felony (§ 667, subd. (a)(1)) and “strike” conviction 

within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d)) for making criminal threats. A jury convicted appellant of counts 1 and 2. 

During the course of the trial and outside the presence of the jury, appellant admitted to 

suffering a prior serious felony conviction.

In a presentencing motion, appellant requested the court strike his prior serious 

felony conviction. The court considered and rejected this motion at appellant’s 

December 11, 2020 sentencing hearing.2 The court then sentenced appellant to a total 

term of nine years on count 1 (criminal threats) and time served on count 2 (trespassing). 

In addition, the court imposed a restitution fine of $2,700 pursuant to former 

section 1202.4, along with several standard fees and related fines. Appellant’s counsel 

did not raise any objections related to the fines and fees. However, at the conclusion of 

the sentencing hearing, when asked if he had any questions about his right to appeal, 

appellant asked some general questions before stating, “Okay. I don’t have money to pay 

the restitution, and I just came out of fire camp.” At this point, the trial court asked again 

2 The court’s full ruling is recited below in the context of resolving a dispute over the 

court’s decision.
4.

whether appellant had questions about his appeal rights and proceeded to conclude the 

sentencing hearing.

Appellant timely filed a notice of appeal in December 2020.

Later, in March 2021, appellant’s counsel filed a request for resentencing pursuant 

to former section 1170, subdivision (d). In this motion, counsel argued the court failed to 

include required presentence credits in its sentence and that the court had improperly 

imposed a criminal protective order. In addition, the motion requested the court reduce 

the restitution fine imposed. The motion noted the general rate for prisoner pay before 

arguing, in total, that appellant “is not objecting to the imposition of a restitution fine; 

rather, he is respectfully requesting the fine be reduced closer to the minimum amount of 

$300. While it’s true [appellant] can earn money with [sic] incarcerated ..., the amount 

is de minimis.” Finally, the motion again requested the trial court dismiss appellant’s 

prior strike conviction. The argument here, in total, stated that appellant “defers to his 

prior REQUEST FOR THE COURT TO DISMISS PRIOR STRIKE CONVICTION 

motion that was heard on December 11, 2020.”

In April 2021, the trial court issued a written order on appellant’s motion. The 

court awarded 357 days credit for time served, ordered a new restraining order be drafted,

and declined appellant’s requests to reduce the restitution fine and strike his prior 

conviction. On these later two points, the court wrote: “The court declines the invitation 

to reduce the restitution fine as there have been no compelling and extraordinary reasons 

for doing so presented. Further, a notice of appeal has been filed which divests this court 

of the jurisdiction to consider such requests. [⁋] ... The court declines the invitation to 

reconsider its sentencing decision on the strike prior and the five-year enhancement. A 

notice of appeal has been filed which divests this court of the jurisdiction to consider 

such requests.”
5.

DISCUSSION

As noted, appellant challenges the trial court’s sentencing decisions and his 

trespassing conviction. First, appellant argues the trial court wrongly concluded it did not 

have the authority to reconsider its decision not to dismiss appellant’s prior strike for 

sentencing purposes. Second, appellant contends the court failed to give a necessary 

unanimity instruction with respect to his trespassing conviction and that the evidence 

submitted to support that conviction was insufficient. Third, appellant raises two related 

arguments under People v. Dueñas (2019) 30 Cal.App.5th 1157, contending the trial 

court failed to hold a hearing to determine appellant’s ability to pay the fines and fees 

imposed as part of his sentence. And fourth, appellant calculates, and the People agree, 

that the presentence credits given to appellant were incorrect and require adjustment.

Trial Court’s Decision to Not Reconsider Appellant’s Prior Strike

Appellant argues the trial court abused its discretion by failing to reconsider 

whether to strike appellant’s prior strike conviction under former section 1170, 

subdivision (d) (now § 1172.1).3 Appellant argues the trial court was unaware that it had 

jurisdiction to reconsider the request after appellant filed his notice of appeal and that the 

record does not indicate the trial court would have denied the request had it been aware of 

its authority to act. We do not agree.

Under section 1172.1: “When a defendant, upon conviction for a felony offense, 

has been committed to the custody of the Secretary of the Department of Corrections and 

Rehabilitation or to the custody of the county correctional administrator pursuant to 

subdivision (h) of Section 1170, the court may, within 120 days of the date of 

commitment on its own motion, at any time upon the recommendation of the secretary or 

3 Effective January 1, 2022, section 1170, subdivision (d) was renumbered 

section 1170.03. (Stats. 2021, ch. 719, § 2.) Effective June 30, 2022, section 1170.03 was 

renumbered section 1172.1. (Stats. 2022, ch. 58, § 9.) It appears there have been no substantive 

changes to the relevant language.
6.

the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the 

county correctional administrator in the case of a defendant incarcerated in county jail, 

the district attorney of the county in which the defendant was sentenced, or the Attorney 

General if the Department of Justice originally prosecuted the case, recall the sentence 

and commitment previously ordered and resentence the defendant in the same manner as 

if they had not previously been sentenced, whether or not the defendant is still in custody, 

and provided the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, 

subd. (a)(1).)

The provision intended to ensure that the trial court “apply the sentencing rules of 

the Judicial Council and apply any changes in law that reduce sentences or provide for 

judicial discretion so as to eliminate disparity of sentences and to promote uniformity of 

sentencing.” (§ 1172.1, subd. (a)(2); see People v. McMurray (2022) 76 Cal.App.5th 

1035, 1040–1041 [discussing amendments].) The statute also “confers upon the trial 

court broad authority to ‘recall a sentence on its own motion for any reason rationally 

related to lawful sentencing [and] then impose any otherwise lawful resentence suggested 

by the facts available at the time of resentencing.’ ” (People v. Lockridge (1993) 

12 Cal.App.4th 1752, 1757 [discussing former § 1170, subd. (d)].) However, the 120-day 

period for recalling the sentence on the court’s own motion is jurisdictional and, 

therefore, not tolled by the filing of a notice of appeal. (Id. at pp. 1757–1758; see People 

v. Williams (2007) 156 Cal.App.4th 898, 909 [120-day period not a jurisdictional bar 

where court not acting on own motion].)

The court’s authority in this situation is discretionary and therefore reviewed for 

an abuse of discretion. (People v. McCallum (2020) 55 Cal.App.5th 202, 210–211.) 

“ ‘ “Where, as here, a discretionary power is statutorily vested in the trial court, its 

exercise of that discretion ‘must not be disturbed on appeal except on a showing that the 

court exercised its discretion in an arbitrary, capricious or patently absurd manner that 

resulted in a manifest miscarriage of justice. [Citations.]’ ” [Citation.] The abuse of 
7.

discretion standard “involves abundant deference” to the court’s ruling.’ ” (Id. at p. 211.) 

In addition, “[a] court necessarily abuses its discretion when it fails to exercise its 

discretion at all, however.” (People v. Choi (2021) 59 Cal.App.5th 753, 766.)

Even if this court were to assume appellant could challenge the trial court’s 

decision not to unilaterally exercise its resentencing discretion under section 1172.1,

4 we 

would find no abuse of discretion on the facts here. We do not agree the trial court was 

unaware of its authority to act and wholly failed to exercise its discretion. While 

appellant is correct that the court relied in part on the existence of a notice of appeal to 

deny the request, the court also wrote that it “declines the invitation to reconsider its 

sentencing decision on the strike prior and the five-year enhancement.” A review of the 

briefing shows that this comment was not meaningless, as appellant suggests.

Appellant’s initial brief requesting the court resentence appellant under former 

section 1170, subdivision (d) contained only a two-sentence argument on the strike issue: 

“Mr. Garcia re-invites the court to dismiss the prior strike and five-year enhancement the 

court applied in its sentence of 9 years. Mr. Garcia defers to his prior REQUEST FOR 

THE COURT TO DISMISS PRIOR STRIKE CONVICTION motion that was heard on 

December 11, 2020.” Based on the prior motion referenced, the court had previously 

engaged in a thorough consideration of appellant’s request to dismiss his prior strike 

conviction and rejected that request.

At that time, the court explained in detail its analysis, stating:

“In looking at the specifics of this case and [appellant], the Court finds no facts 

revealed by the case, his prior cases or [appellant] personally that would cause the Court 

to exercise its discretion and dismiss the prior strike conviction.

4 A court’s order “denying a defendant’s request to resentence pursuant to [former] 

section 1170[,] subdivision (d) is not appealable as an order affecting the substantial rights of the 

party. This is because the defendant has no right to request such an order in the first instance; 

consequently, his ‘substantial rights’ cannot be affected by an order denying that which he had 

no right to request.” (People v. Pritchett (1993) 20 Cal.App.4th 190, 194.)
8.

“In this particular case—it is very unique—[appellant] has a long history with this 

family next door. He was convicted and the strike prior is the same exact charge, 

[section] 422, just a different victim, Mr. Whitaker’s sister who lives in a mobile home on 

the property. [Appellant] went to prison for that offense, was released, had a few 

criminal offenses in the meantime, and then in 2018 was—knowing that he was a felon 

unable to possess any type of firearm, he possessed an illegal homemade zip gun, which 

is essentially a Frankenstein hoveled [sic] together gun with parts, which is illegal 

standing alone, and was convicted of that. He was alleged to have made a threat again, 

again against the same victim family that he was acquitted of that in that same charge. 

Sent to prison again. And then when he was released just months later he is again up on 

the victim’s property. And the facts are already—we’ve already identified those as well 

as the transcript of the trial. There just isn’t any logical reason why [appellant] would do 

that, but certainly the type of conduct he has engaged in and engaged in in this particular 

case does not make him outside the spirit of the Three Strikes Law. [Section] 422 

doesn’t require violence. If he had had a weapon, his conduct would have been a 

[section] 242. If he had a firearm it would have been [section] 245(a) (2)—or 

[section] 245—245(a) (2). The threat causes the victim to be in fear, and his comment—

again, uncontradicted—that he would make Mr. and Mrs. Tate’s six-year-old daughter his 

whore is frankly beyond abhorrent. And we know from the testimony that it’s the type of 

conduct that he’s engaged in with Mrs. Tate when she was younger and her sisters and all 

this while appearing at the front door of the victims.

“The Court finds that there is absolutely no fact that would find [appellant] in this 

case on this conduct beyond the spirit of the Three Strikes Law and therefore denies the 

motion to strike the strike.”

In context, then, the court’s direct response that it declines the invitation to 

reconsider its sentencing decision is not an indication it was unaware of its authority to 

act. Rather, it is a clear indication that upon a request to reconsider its prior ruling based 
9.

on arguments already deeply considered and rejected, the court would decline to do so. 

We see no basis to conclude this was an abuse of the court’s discretion. Further, even if 

the court’s ruling could be construed as a lack of awareness of its discretionary authority 

at the time, the court’s complete and well-articulated basis for declining the strike request 

prior to sentencing clearly shows that the court would not have acted had it been aware of 

its discretion to act at this later point. Appellant raised no new grounds for dismissing his 

prior strike and the court had clearly indicated the facts on the record were insufficient in 

its view to warrant dismissal. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 

[error is harmless where record clearly indicates the court would have reached the same 

conclusion if it were aware of its discretion].)

Appellant’s Trespassing Conviction

Appellant next argues that his misdemeanor conviction for trespassing (§ 602, 

subd. (m)) should be set aside. Appellant contends the evidence admitted at trial was 

insufficient to support the conviction and that the instructions provided to the jury were 

improper because the trial court failed to give a required instruction on unanimity. With 

respect to the evidentiary argument, appellant argues the evidence was insufficient to 

prove the “occupation” element of the specific subdivision charged. Upon review, we 

agree with appellant that the version of trespass charged cannot be sustained on the 

evidence admitted. We therefore do not reach appellant’s unanimity instruction 

argument.

“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine 

the facts ourselves. Rather, we “examine the whole record in the light most favorable to 

the judgment to determine whether it discloses substantial evidence—evidence that is 

reasonable, credible and of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the 

evidence.’ ” (People v. Brown (2014) 59 Cal.4th 86, 105–106.) “ ‘We do not reweigh 
10.

evidence or reevaluate a witness’s credibility.’ [Citations.] ‘Resolution of conflicts and 

inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] 

Moreover, unless the testimony is physically impossible or inherently improbable, 

testimony of a single witness is sufficient to support a conviction.’ ” (Id. at p. 106, first 

bracketed insertion added.)

Appellant was charged with criminal trespassing in violation of section 602, 

subdivision (m), which prohibits “[e]ntering and occupying real property ... without the 

consent of the owner.” To “occupy” a property for purposes of section 602, 

subdivision (m) requires “ ‘a nontransient, continuous type of possession’ with ‘some 

degree of dispossession and permanency.’ ” (In re Y.R. (2014) 226 Cal.App.4th 1114, 

1119.) Transient overnight use of a property or remaining on a property for several hours 

is insufficient to meet the occupancy element. (Id. at pp. 1119–1120.)

Here, drawing all inferences in favor of the verdict, the evidence supported the 

conclusion that appellant was on the victim’s property for only a matter of minutes. The 

record contains no evidence that appellant attempted to dispossess the owner of the 

property or established any kind of permanent presence on the property. Rather, he 

entered the property legally, was told to leave, argued for a few moments, left, and then 

reentered the property over several moments as he darted around the property line. None 

of this activity rises to the level of nontransient, continuous possession required by

section 602, subdivision (m).

In opposition, the People argue appellant’s primary theory is “that an individual 

can storm onto private property, threaten the inhabitants, refuse to leave, and still not be 

guilty of trespass.” While we agree that such conduct should constitute trespassing, it is 

not the type of trespassing covered by section 602, subdivision (m). Rather, such conduct 

is covered by section 602, subdivision (o), which criminalizes “[r]efusing or failing to 

leave land, real property, or structures belonging to or lawfully occupied by another and 

not open to the general public, upon being requested to leave by ... the owner, the 
11.

owner’s agent, or the person in lawful possession.” Here, the prosecution elected to 

proceed on a theory that required nontransient, continuous possession, but could only 

elicit facts demonstrating transient possession in a brief period after refusing to leave. 

The evidence is therefore not sufficient to sustain the conviction.

Dueñas Issues

Appellant raises two claims relating to the fines and fees imposed in this case. In 

the first, appellant argues the court erred in ordering a restitution fine under former 

section 1202.4 without first assessing appellant’s ability to pay. In the second, appellant

extends that challenge to all of the fines and fees imposed against appellant. The People 

respond by arguing these claims were forfeited through appellant’s failure to object, that 

the fees and fines were appropriate regardless, and that any alleged error was harmless. 

We ultimately agree with the People.

We begin with the forfeiture argument. In this matter, appellant was represented 

by counsel throughout the proceedings. At no point prior to the initial sentencing did 

counsel object to the proposed fines or fees ultimately imposed. As sentencing occurred 

in December 2020, Dueñas had been known and discussed for nearly two years, 

including by this court in cases such as People v. Aviles (2019) 39 Cal.App.5th 1055 

(Aviles). Normally, the failure to object in the trial court forfeits a claim on appeal, even 

constitutional claims. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re 

Sheena K. (2007) 40 Cal.4th 875, 880–881.) Moreover, “ ‘discretion to excuse forfeiture 

should be exercised rarely and only in cases presenting an important legal issue.’ ” (In re 

Sheena K., at p. 888, fn. 7.)

Appellant claims that the issue was properly raised, however, because in 

concluding comments to the judge after sentencing he stated, “I don’t have money to pay 

the restitution, and I just came out of fire camp.” Notably, in context, this statement was 

part of a series of questions about how to appeal generally and did not include any 

additional commentary about a lack of ability to earn money in the future. At best, then, 
12.

it was an unexpected affirmation that appellant currently had no money available to pay 

the restitution ordered. Given that appellant was represented by counsel who made no 

objections to the amounts ordered and that appellant made no other comments about his 

ability to earn money, this one-off factual statement, made outside of the point where the 

fees and fines were discussed and imposed, is not sufficient to preserve a potential 

objection to the fines and fees imposed based on an inability to pay. We therefore find 

the issue forfeited.

Appellant argues that if the issue were forfeited, this would constitute ineffective 

assistance of counsel. We note, however, that even were the issue properly preserved, we 

would find no reversible error in the trial court’s failure to hold a hearing on appellant’s 

ability to pay. Consequently, appellant cannot demonstrate prejudicially ineffective 

assistance of counsel in the failure to formally object.

As explained in Aviles, supra, 39 Cal.App.5th 1055, we believe Dueñas was 

wrongly decided and an Eighth Amendment analysis is more appropriate to determine 

whether restitution fines, fees, and assessments in a particular case are grossly 

disproportionate and thus excessive. (Aviles, at pp. 1068–1072.) Under that standard, the 

fines and fees imposed in this case are not grossly disproportionate to appellant’s level of 

culpability and thus not excessive under the Eighth Amendment. (See Aviles, at p. 1072.)

Even if we agreed with Dueñas, we would still reject appellant’s constitutional 

claims and find that any error arising from the court’s failure to make an ability to pay 

finding was harmless since appellant has the ability to pay the restitution fine and the fees 

that he now challenges. (See Chapman v. California (1967) 386 U.S. 18, 24; Aviles, 

supra, 39 Cal.App.5th at pp. 1075–1077; People v. Jones (2019) 36 Cal.App.5th 1028, 

1030–1031.) “ ‘ “Ability to pay does not necessarily require existing employment or 

cash on hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a 

restitution fine, the court is not limited to considering a defendant’s present ability but 

may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the 
13.

defendant’s ability to obtain prison wages and to earn money after his release from 

custody.’ ” (Aviles, at p. 1076.)

In this case, appellant’s statement to the court that he just “came out of fire camp” 

is sufficient to show that appellant is able-bodied and capable of working. This fact is 

further buttressed by the letters submitted on appellant’s behalf for sentencing indicating 

appellant “is [an] apparently very knowledgeable car repairman, repairing tractors” and is 

otherwise a productive, hardworking individual. Moreover, following sentencing, 

appellant’s counsel submitted the previously discussed request for resentencing. In that 

document, counsel only argued that appellant would make very little while in prison and 

raised no issues suggesting appellant would be incapable of work, either while in prison 

or after his sentence ended.

We can therefore infer that appellant has the ability to pay the fines and fees from 

probable future wages, including prison wages and postrelease work. (Aviles, supra, 

39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. 

Douglas (1995) 39 Cal.App.4th 1385, 1397.) While appellant may not have immediately 

had the means to pay the amounts imposed in this case, that circumstance does not 

support an inability to make payments on these amounts. (See, e.g., People v. Potts

(2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321; 

People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

We thus conclude that based on the record before this court, appellant had the 

ability to pay the fines and fees and any error arising from the court’s failure to make an 

ability to pay finding was harmless beyond a reasonable doubt.

For the same reason that appellant’s Dueñas claim fails on its merits, his 

ineffective assistance of counsel claim would fail for lack of prejudice. “To show 

ineffective assistance, [a] defendant must show that ‘counsel’s performance was 

deficient, and that the defendant was prejudiced, that is, there is a reasonable probability 

the outcome would have been different were it not for the deficient performance.’ 
14.

[Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence 

in the outcome.’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 761–762.) Here, appellant 

suffered no prejudice from counsel’s initial failure to object to imposition of fines and 

fees because the fines and fees are not grossly disproportionate to appellant’s level of 

culpability and appellant had the ability to pay the aggregate amount of fines and fees 

from probable future wages. The outcome would therefore have been no different if 

counsel had objected to the imposition of the fines and fees. This is particularly so given 

that even when counsel sought to make an argument, the facts offered in support were 

limited to appellant’s expected prison wages, indicating no additional facts regarding 

appellant’s ability to work could be mustered.

Presentence Credits

Finally, appellant contends, and the People agree, that the trial court miscalculated 

the amount of presentence credits to which appellant was entitled.5 As the parties note, 

appellant was entitled to 181 days of actual credit, not the 179 originally calculated. (See 

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [“A defendant is entitled to credit 

for the date of his arrest and the date of sentencing.”].) The parties then agree that 

181 days of good time/work credit would be proper.

The court agrees the time imposed was improperly calculated and accepts the 

parties’ agreed-upon calculations on appeal. The court will order the abstract of 

judgment be amended to provide appellant with 362 days of presentence credit.

DISPOSITION

The misdemeanor conviction for trespassing under Penal Code section 602, 

subdivision (m) is reversed, and the sentence of time served is vacated. The felony 

5 Notably, the amount entered was the number requested by appellant’s counsel in 

appellant’s request for resentence. Regardless, all parties agree the amount entered was 

incorrectly calculated.
15.

abstract of judgment shall be modified to reflect 362 days of presentence credit. In all 

other respects the judgment is affirmed.

HILL, P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.