1

Filed 5/3/23 P. v. Lopez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSUE VERDUGO LOPEZ,

Defendant and Appellant.

C096152

(Super. Ct. No. 

STKCRFE20200011521)

Defendant Josue Verdugo Lopez stabbed his neighbor to death in the victim’s 

apartment. Found guilty of first degree murder with a knife and burglary, defendant 

received 25 years to life in state prison for the murder, plus one year for a weapon 

enhancement, and a stayed upper term sentence for the burglary. 

On appeal, defendant contends the prosecutor engaged in prejudicial misconduct 

during closing argument by asserting that there was no evidence defendant had used 

drugs the day of the homicide and that the jury could not consider testimony regarding 

defendant’s drug usage to infer he had been using drugs when he killed the victim, which 

he asserts misstated the evidence and the law regarding circumstantial evidence. To the 

extent he forfeited his prosecutorial misconduct claims by not objecting and asking for an 
2

admonition below, defendant argues his counsel was ineffective. He also seeks credit for 

one additional day of presentence custody. 

We agree defendant is entitled to an additional day of credit, but otherwise reject 

his claims. By not objecting, defendant forfeited his prosecutorial misconduct challenge,

and he has not shown counsel was ineffective or that he was prejudiced by any alleged 

error. We therefore modify the judgment to award defendant one additional day of 

custody credit and affirm.

I. BACKGROUND

On the evening of October 20, 2020, D.B. walked outside his garage in his 

apartment complex and waved to his neighbor, Dennis Ferguson. Sometime later, 

someone told D.B. that Ferguson was arguing with another neighbor. D.B. walked to 

Ferguson’s apartment and looked through his window. D.B. saw Ferguson lying on the 

ground bleeding; Ferguson’s apartment door was open. D.B. called 911 and started CPR. 

Shortly before police responded to the scene, another neighbor, N.C., saw 

defendant walking shirtless through the apartment complex while putting on a pair of 

pants. N.C. stepped inside her garage where her husband was working, and she shut and 

locked the door because she was scared. Defendant stopped at the door and asked for 

help, but they did not respond.1 Her husband believed that defendant appeared nervous; 

he was shirtless and glanced side to side like he was trying to hide from someone. After 

they heard sirens, they saw defendant leave and run across the street. Clothing and 

personal items belonging to defendant or his family were found discarded near the 

couple’s apartment. 

Stockton police officers responded to a reported stabbing at the apartment 

complex around 7:00 p.m. They found Ferguson lying unconscious on his apartment 

1 N.C.’s husband did not recall telling officers that defendant had asked for help. 
3

floor with multiple stab wounds as D.B. performed CPR. Ferguson was transported to a 

hospital where he died from his injuries. 

Later that night, officers searched a neighboring apartment where defendant and 

his partner, Y.C., lived with their children. Inside, officers located a backpack belonging 

to defendant’s minor daughter with some of defendant’s clothing in it, including 

defendant’s shoes and black sweatpants with red stains on them that appeared to be 

blood. The backpack also contained a white shirt and a large kitchen knife, which both 

had red substances on them that appeared to be blood. Police found a pair of jeans with a 

wet spot and discoloration in the bathroom trash can. An electric blow dryer was on in 

the bathroom sink. 

On the day Ferguson was killed, Y.C. saw defendant at their apartment before she 

left for her 3:00 p.m. shift at a restaurant located a short distance away. Defendant was 

wearing a short-sleeved white shirt and black pants, which did not have any red marks or 

stains on them when Y.C. left. 

Towards the end of Y.C.’s shift that day, Y.C. saw a man attempting to open her 

car door outside the restaurant. She could not tell whether it was defendant. The man 

was unable to open the car door and ran off towards the street. Y.C. left the restaurant 

when her shift ended around 10:00 or 10:30 p.m. 

As Y.C. drove home,2she thought she saw defendant running shirtless across the 

street. He appeared to be carrying one of their kitchen knives in his hand. 

Y.C. stopped the car to confirm it was defendant, but she was scared because she 

thought defendant might be under the influence of drugs. Over the previous month, Y.C. 

had often seen defendant when he had used drugs; he would become angry and accuse 

her of being unfaithful. Fearful, Y.C. drove off as defendant approached her car. 

2 Y.C. had taken two of her children to work with her that day, and they were also in the 

car. 
4

When she arrived at the apartment complex a short time later, Y.C. found police 

investigating the murder scene; her apartment was blocked off. She informed officers 

that she had just seen defendant nearby with their kitchen knife. 

Around 10:50 p.m., officers located defendant walking towards a nearby business 

wearing black pants but no shirt; he was carrying a pair of pliers. Defendant was arrested 

after following commands given to him in Spanish. 

At the police station, a detective observed defendant rolling around on the ground 

in the interview room, moving his body in various directions. During the lengthy police 

interview, defendant was sometimes highly active or sleeping on the floor. The detective 

could not say, based on his training and experience, whether defendant seemed like he 

was high on drugs at the time; his behavior sometimes appeared normal throughout the 

long interview process. 

Subsequent DNA analysis revealed that the red stains on the shoes, knife, and 

white shirt found in defendant’s daughter’s backpack was human blood. Further analysis 

indicated that Ferguson was a likely contributor to the blood found on the heel of 

defendant’s right shoe, the bloodstain on the side of the knife and the knife handle, and 

the bloodstain on the white shirt. There was also a strong likelihood that defendant 

contributed to the bloodstain on the knife handle and to the bloodstain on the white shirt. 

A jury found defendant guilty of willful, deliberate, premeditated murder (Pen. 

Code, §§ 187, subd. (a), 189—count 1)3 while using a knife (§ 12022, subd. (b)(1)), and 

first degree burglary (§ 459—count 2). In April 2022, the trial court sentenced defendant 

to an indeterminate term of 25 years to life for the murder, plus a consecutive one year

for the weapon enhancement. The court imposed the upper term of six years for the 

burglary offense, which it stayed under section 654. In imposing the upper term, the 

3 Further undesignated statutory references are to the Penal Code.
5

court cited several factors in aggravation, including that Ferguson was vulnerable in his 

home with some health issues when he was killed, that defendant engaged in violent 

behavior, that defendant suffered a prior felony sex offense conviction, and that 

defendant had expressed no remorse or regret for the crimes. The court awarded 

defendant 552 days of presentence custody credits. Defendant timely appealed. 

II. DISCUSSION

A. Prosecutorial Misconduct

Defendant contends the prosecutor’s closing argument misrepresented the 

evidence concerning the primary defense of intoxication and misstated the law regarding 

circumstantial evidence. These alleged prosecutorial errors, he contends, mandate 

reversal for a new trial. We disagree.

1. Closing Arguments

Before closing arguments commenced, the trial court cautioned the jury that if 

either side objected that the other’s argument somehow misstated the evidence, jurors 

could request a readback from the court reporter during deliberation to confirm the 

evidence for themselves. The court noted that the attorneys were merely advocates and 

reminded the jurors that different people could see or hear things differently. 

At the outset of her closing argument, the prosecutor stated that it was the 

attorneys’ opportunity to argue to the jury what they believed the evidence showed, and 

that it would “never be [her] intent to try to confuse [them] or to mislead [them].” To 

that end, the prosecutor encouraged the jurors to consult “the actual evidence” if they 

believed that the evidence showed something different than what she argued in closing,

because “[a]t the end of the day, it doesn’t matter what the attorneys say because as you 

will read in CALCRIM 200, attorneys are not evidence—what they say is not evidence.”4 

4 CALCRIM No. 200 provides in pertinent part: “You must decide what the facts are. It 

is up to all of you, and you alone, to decide what happened, based only on the evidence 
6

She further noted that the jury instruction packet would be the law that guided the jury, 

and she encouraged jurors to look to the law if they had any questions during 

deliberations. 

The prosecutor acknowledged that this case was a “circumstantial evidence case” 

where the jury would use inferences to prove a fact since there was no eyewitness to the 

crime, and she referred jurors to the jury instructions concerning circumstantial evidence. 

The prosecutor subsequently summarized Y.C.’s testimony as follows: 

“[A]lthough she never personally observed [defendant] using drugs, she believed that he 

would use drugs at times.” The prosecutor continued, “[Y.C.] also described that she had 

found pipes within the house. We know nothing more. And you don’t get to fill it in. 

All we know is that her further information was that when he would be coming from a 

different point during the course of using drugs, he would become angry, and he would 

be accusing her of engaging in infidelity. That’s the evidence you have. You don’t get to 

attach something any more than that because there’s absolutely no evidence in this case 

that he was using drugs that day; how much drugs he was using that day; if he was, what 

that drug [] may have been; how he was affected by it, absolutely nothing. You have to 

stay within the confines of what you know. You don’t get to fill it in. [¶] You don’t get 

to make an excuse. You don’t get to excuse someone because it’s very convenient to just 

adopt something that would help you feel better about why he did this, but that’s not what 

you’re here for. So you’re here to evaluate the facts. And at the end of the day what is 

reasonable in light of all of the evidence.” Defense counsel did not object to this portion 

of the prosecutor’s argument. 

Next, the prosecutor noted the jury would have to decide whether the voluntary 

intoxication instruction applied based on the evidence presented. While she 

that has been presented to you in this trial. [¶] . . . [¶] You must follow the law as I 

explain it to you, even if you disagree with it. If you believe that the attorneys’ 

comments on the law conflict with my instructions, you must follow my instructions.” 
7

acknowledged that voluntary intoxication could negate the specific intent required for 

each count, she argued the jury would have to find that defendant was “under the 

influence of some narcotic of some sort to the extent that he could not have decided 

before he killed [Ferguson] that that’s what he was going to do.” 

In arguing against finding voluntary intoxication, the prosecutor characterized

defendant’s actions before and after the murder as calculated, including using the knife 

from his own apartment to kill the victim in the victim’s apartment and then returning to 

his own apartment to try to change, wash some of the blood off his clothes, and hide the 

bloody knife and bloody shoes in his child’s backpack. The prosecutor argued that

“[p]eople that do not understand the wrongfulness of what they just did, do not need to 

hide evidence, and they do not need to go and hide. That’s how you know that he was 

not intoxicated to any extent that he did not understand what he was doing.” 

In her closing argument, defense counsel emphasized both the circumstantial 

evidence instruction and the voluntary intoxication instruction for the jury. She 

highlighted evidence showing defendant’s prior drug use and his erratic behavior after 

Ferguson was murdered to circumstantially show he was voluntarily intoxicated the night 

of the murder thereby negating the required specific intent for the murder and burglary 

charges. Defense counsel also argued: “Now, the district attorney told you, well, that 

doesn’t mean anything. Well, isn’t that circumstantial evidence that he uses meth, just 

the same as she wants you to use circumstantial evidence to convict him of murder?” 

In rebuttal, the prosecutor pointed out that there was no evidence that officers had 

found drug pipes in defendant’s apartment, which would have seemed likely had 

defendant been a significant drug user as defense counsel argued. While she posited that 

maybe defendant used drugs, in her view, the relevant question before the jury was 

whether there was any evidence to support that defendant used drugs before he 

committed the murder and that, as a result, he lacked the capacity to understand that he 

was picking up the knife from his own apartment and taking it to Ferguson’s apartment to 
8

kill him. She further argued that “when you look at all the actions that he took, hiding 

evidence, cleaning up evidence, changing his clothes, leaving, finding his way out to 

West Lane where [Y.C.] was located, knowing that’s where she would be, if he was so 

zonked out of his mind on dope after he did this crime, what would you expect to see, 

him just standing there with a knife in his hand? He would still be on scene. He would 

not formulate all of this stuff.” In sum, the prosecutor asserted that “the mere fact that 

somebody says at some point . . . she doesn’t see he uses drugs and then he acts out is not 

sufficient to prove that in this case he used it and he was high to an extent that he did not 

know what he was doing.” 

2. Analysis

The standards for evaluating prosecutorial misconduct are well-established. 

(People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) “A prosecutor’s conduct violates the 

Fourteenth Amendment to the federal Constitution when it infects the trial with such 

unfairness as to make the conviction a denial of due process. Conduct by a prosecutor 

that does not render a criminal trial fundamentally unfair is prosecutorial misconduct 

under state law only if it involves the use of deceptive or reprehensible methods to 

attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 

Cal.4th 34, 44 (Morales).)

Generally, “ ‘a defendant may not complain on appeal of prosecutorial misconduct 

unless in a timely fashion—and on the same ground—the defendant [requested] an 

assignment of misconduct and [also] requested that the jury be admonished to disregard 

the impropriety.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) A defendant will be 

excused from making a timely objection or requesting an admonishment, however, if 

either would be futile. (Hill, supra, 17 Cal.4th at p. 820.)

When a misconduct claim focuses on a prosecutor’s remarks before the jury, “the 

defendant must show that, ‘[i]n the context of the whole argument and the instructions’ 

[citation], there was ‘a reasonable likelihood the jury understood or applied the 
9

complained-of comments in an improper or erroneous manner.’ ” (People v. Centeno 

(2014) 60 Cal.4th 659, 667 (Centeno); see Morales, supra, 25 Cal.4th at p. 44.) In 

reviewing the prosecutor’s remarks, an appellate court does not lightly infer the jury drew 

the most damaging rather than the least damaging meaning from them. (Centeno, supra, 

at p. 667.)

Prosecutors, moreover, are “ ‘ “given wide latitude” ’ ” during closing arguments 

(Hill, supra, 17 Cal.4th at p. 819), and they are entitled to discuss the evidence and to 

comment on reasonable inferences that may be drawn therefrom. (Morales, supra, 

25 Cal.4th at p. 44.) Summations may be vigorous; a prosecutor is “ ‘ “ ‘ “not limited to 

‘Chesterfieldian politeness.’ ” ’ ” ’ ” (Hill, supra, at p. 819.) Nevertheless, while a 

prosecutor has broad discretion in discussing the legal and factual merits of a case, “ ‘ “it 

is improper to misstate the law.” ’ ” (People v. Katzenberger (2009) 178 Cal.App.4th 

1260, 1266.)

Defendant concedes he failed to object to any of the prosecutor’s closing 

statements he now alleges are improper. The alleged misconduct, we conclude, was not 

so egregious that a curative admonition would not have been effective. As the People 

note, even if the prosecutor’s comments amounted to error, any prejudicial effect could 

have been cured by an instruction from the trial court clarifying how the jury was to 

apply the instructions concerning circumstantial evidence and voluntary intoxication. 

Accordingly, defendant has not preserved his misconduct claims for review.

Defendant argues that to the extent his counsel failed to object below and preserve 

the points for appeal, his counsel provided ineffective assistance. To establish a claim for 

ineffective assistance of counsel, defendant must show his counsel’s performance was 

deficient and that he suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 

181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate 

prejudice, defendant must show a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different. (Mickel, supra, 
10

at p. 198.) We presume that “counsel’s actions fall within the broad range of 

reasonableness, and [we] afford ‘great deference to counsel’s tactical decisions.’ ” (Ibid.) 

As our Supreme Court has observed, “certain practical constraints make it more 

difficult to address ineffective assistance claims on direct appeal rather than in the 

context of a habeas corpus proceeding.” (People v. Mickel, supra, 2 Cal.5th at p. 198.) 

This is because “[t]he record on appeal may not explain why counsel chose to act as he or 

she did. Under those circumstances, a reviewing court has no basis on which to 

determine whether counsel had a legitimate reason for making a particular decision, or 

whether counsel’s actions or failure to take certain actions were objectively 

unreasonable.” (Ibid.) We will reverse only if there is affirmative evidence that counsel 

had no rational tactical purpose for an act or omission. (Ibid.; People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266 [if “ ‘ “the record on appeal sheds no light on why counsel 

acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation,” the claim on appeal must be rejected’ ”].) A defendant thus bears a 

difficult burden when asserting an ineffective assistance claim on direct appeal. (Mickel, 

supra, at p. 198.) 

The record here is silent as to counsel’s reasons, if any, for failing to object to the 

prosecutor’s closing remarks defendant now challenges on appeal. Defendant claims 

there was no reasonable tactical basis for trial counsel’s failure to object to the alleged 

misrepresentations of the testimony concerning defendant’s potential intoxication defense 

and the misstatement of the law regarding circumstantial evidence since the intoxication 

defense was the most viable defense available at trial. We disagree. Defendant has 

shown neither deficient performance nor prejudice.

It is well-settled that “ ‘a mere failure to object to evidence or argument seldom 

establishes counsel’s incompetence’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567), as 

“ ‘[d]eciding whether to object is inherently tactical.’ ” (People v. Salcido (2008) 
11

44 Cal.4th 93, 172; see ibid. [“ ‘the failure to object will rarely establish ineffective 

assistance’ ”].) Here, the record establishes that valid tactical reasons existed for not 

objecting to, and not asking the trial court to tell the jury to disregard, the prosecutor’s 

arguments. 

A prosecutor may comment on the state of the evidence (Morales, supra, 25 

Cal.4th at p. 44), and may properly urge the jury to discount an accused’s mitigating or 

defense evidence. (See e.g., People v. Lucero (2000) 23 Cal.4th 692, 735 [prosecutor’s 

argument during penalty phase that the defendant’s difficult childhood or military service 

did not give him a blank check to commit murder was proper; prosecutor did no more 

than urge the jury to discount the defendant’s mitigating evidence].) “It is permissible to 

argue that the jury may reject impossible or unreasonable interpretations of the evidence 

and to so characterize a defense theory.” (Centeno, supra, 60 Cal.4th at p. 672.)

In this case, defense counsel reasonably could have determined that the 

prosecutor’s initial comments regarding defendant’s alleged drug use based on Y.C.’s 

testimony did not misstate the law or the evidence concerning circumstantial evidence, 

but merely constituted a comment on the state of the evidence, or lack of evidence, 

regarding defendant’s drug use the day of the killing and how that might have impacted 

his ability to form the specific intent necessary to support the charges. This is especially 

so since the complained-of comment came almost directly after the prosecutor 

acknowledged the case was a circumstantial one and referred the jury to the court’s 

instructions on the issue. Counsel does not render ineffective assistance by failing to 

make objections that counsel reasonably determined are unmeritorious or futile. (People 

v. Price (1991) 1 Cal.4th 324, 387.) To the extent defendant faults the prosecutor for not 

characterizing evidence that defendant left tools or clothes outside his neighbor’s

apartment when he asked for help or that he left a hair dryer running in his apartment as 

circumstantial evidence of defendant’s drug use the day he killed Ferguson, nothing 

required the prosecutor to adopt defense counsel’s preferred interpretation of the 
12

evidence. (Centeno, supra, 60 Cal.4th at p. 672.) Indeed, as defendant himself concedes, 

his intent in leaving items outside another apartment is unclear, and the prosecutor was 

free to argue a contrary interpretation to the jury.

Defense counsel also could have determined that tactically it was better to 

confront the argument head on during her closing, rather than simply object, which 

defendant concedes defense counsel did. As defendant notes, his trial counsel argued in 

response: “[T]he district attorney told you, well, that doesn’t mean anything. Well, isn’t 

that circumstantial evidence that he uses meth, just the same as she wants you to use 

circumstantial evidence to convict him of murder?” Counsel thus alerted the jury to the 

fact that circumstantial evidence of defendant’s drug use was important to focus on in 

deciding the case. Because “ ‘[t]he decision facing counsel in the midst of trial over 

whether to object to comments made by the prosecutor in closing argument is a highly 

tactical one[,]’ ” and rarely establishes ineffective assistance, we cannot say defense 

counsel’s tactical choice to confront the argument rather than object was unreasonable 

under the circumstances. (Centeno, supra, 60 Cal.4th at p. 675; see People v. Wharton,

supra, 53 Cal.3d at p. 567 [failure to object rarely establishes ineffective assistance of 

counsel because decision to object is inherently tactical].) 

Furthermore, considered in the context of the prosecutor’s entire closing argument, 

we do not believe the prosecutor’s challenged remarks that the jury did not get to “fill-in” 

missing evidence misstated the law regarding circumstantial evidence or misrepresented 

the evidence of defendant’s drug use. Instead, the prosecutor’s remarks are better 

understood as emphasizing the court’s instruction that the jury had to decide what the 

facts were based only on the evidence presented in the courtroom, which consisted of the 

sworn testimony of witnesses, admitted exhibits, and anything else the judge told them to 

consider as evidence. “A [criminal] jury may only decide the issue of guilt based on the 

evidence presented at trial, with the presumption of innocence as its starting point.” 

(Centeno, supra, 60 Cal.4th at p. 669.) While jurors may rely on common knowledge 
13

and experience when considering the evidence, “they may not go beyond the record to 

supply facts that have not been proved.” (Id. at pp. 669-670.)

The prosecutor’s fleeting comment in an otherwise lengthy closing argument, 

moreover, did not, as defendant contends, tell the jury that it could not rely on 

circumstantial evidence. Again, the prosecutor expressly acknowledged the 

circumstantial nature of the case and directly engaged with the circumstantial evidence of 

defendant’s drug use, arguing that the evidence presented was simply insufficient to show 

he lacked the requisite specific intent the day of the murder to support a voluntary 

intoxication defense, because the totality of his actions showed a degree of cognizance 

after the killing that was inconsistent with the level of voluntary intoxication necessary to 

negate the required specific intent. (Cf. People v. Peoples (2016) 62 Cal.4th 718, 798

[prosecutor directly addressed the defense expert’s testimony by arguing that defendant’s 

alteration of the gun between shootings revealed the defendant’s clarity of thought and 

that defense experts did not present more comprehensive testing because it would reveal 

that there was nothing wrong with defendant].)

But even if the jury could have misconstrued the prosecutor’s remarks, any 

potential error was harmless. The trial court instructed the jury that the attorneys’ closing 

statements were not evidence and that if anything the attorney said conflicted with the 

court’s instructions, the jury must follow the instructions. 

Regarding circumstantial evidence, the court instructed the jury that “[f]acts may 

be proved by direct or circumstantial evidence or by a combination of both,” and that 

both direct and circumstantial evidence were “acceptable types of evidence to prove or 

disprove the elements of a charge, including intent and mental state and acts necessary to 

a conviction, and neither is necessarily more reliable than the other.” The court further 

instructed that circumstantial evidence, or indirect evidence, does not directly prove a fact 

to be decided but is evidence of another fact or group of facts from which the jury could 
14

logically and reasonably conclude the truth of the fact in question, including a 

defendant’s mental state. 

Regarding voluntary intoxication, the court instructed the jury that it could 

consider evidence of voluntary intoxication when determining whether defendant acted 

with the specific intent to kill and with premeditation and deliberation. For purposes of 

an intoxication defense, the jury was instructed that “[a] person is voluntarily intoxicated 

if he becomes intoxicated by willingly using any intoxicating drug, drink or other 

substance, knowing that it could produce an intoxicating effect, or willingly assuming the 

risk of that effect.” 

We presume the jurors followed these instructions (People v. Smith (2007) 

40 Cal.4th 483, 517), and no evidence suggests otherwise. (People v. Stitely (2005) 

35 Cal.4th 514, 559 [reviewing court “assume[d] the jury abided by the court’s 

admonitions and instructions, and thereby avoided any prejudice”].) “When argument 

runs counter to instructions given a jury, we will ordinarily conclude that the jury 

followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the 

court’s instructions as a statement of law by a judge, and the prosecutor’s comments as 

words spoken by an advocate in an attempt to persuade.’ ” (People v. Osband (1996)

13 Cal.4th 622, 717.) The prosecutor herself encouraged the jury to follow the court’s 

instructions during deliberations and expressly noted that nothing she said during closing 

was evidence. “Accordingly, it is not ‘reasonably probable that a result more favorable to 

[the defendant] would have been reached in the absence of the error.’ ” (People v. 

Peoples, supra, 62 Cal.4th at p. 799.) The jury properly considered and rejected 

defendant’s voluntary intoxication defense.

B. Custody Credits

The court awarded defendant 552 days of presentence custody credit. The parties 

agree, as do we, that defendant is entitled to one additional day of credit for the actual 

day of sentencing. 
15

A defendant convicted of a felony is entitled to credit for all days of presentence 

custody up to and including the day of sentencing. (§ 2900.5, subd. (a).) This is because 

“[a] defendant who remains in custody between conviction and sentencing will have 

spent part of the day of sentencing in custody prior to actual sentencing,” and the 

sentencing court is obligated to award presentence credit for this partial day. (People v. 

Smith (1989) 211 Cal.App.3d 523, 526.) 

In this case, defendant was arrested on October 20, 2020, and was sentenced on 

April 25, 2022. Defendant was therefore in actual custody for 553 days, including the 

day he was sentenced. Accordingly, we shall modify the judgment to award defendant 

553 days of total credit and direct that the abstract of judgment be corrected to reflect that 

amount. 

III. DISPOSITION

The judgment is modified to award defendant one additional day of custody credit 

for a total of 553 days of credit. As so modified, the judgment is affirmed. The clerk of 

the trial court is directed to amend the abstract of judgment to reflect 553 days of credit 

and to forward a copy of the amended abstract of judgment to the Department of 

Corrections and Rehabilitation.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

MAURO, J.