IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SCOTT TOSHIHIKO TAKASUGI, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F05220)
The opinion of the court was delivered by: Robie ,j.
P. v. Takasugi 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant, a plastic surgeon, entered pleas of nolo contendere to two counts of sexual exploitation of a patient. Seven additional counts that involved other victims of serious sex offenses were dismissed with a Harvey*fn1 waiver. He was sentenced to three years and eight months in prison. On appeal, he contends his motion to suppress should have been granted because three of the search warrants were not supported by proper oaths and there was no probable cause to search for evidence relating to Angela R. Defendant also challenges his sentence, contending the trial court abused its discretion in imposing the upper term and failed to provide reasons for a consecutive term. We modify defendant's presentence custody credit and otherwise affirm.
Defendant was charged with three counts of penetration with a foreign object on Jamie S.; penetration with a foreign object and sexual exploitation by a physician on Brenda M.; the same two crimes on Jessica M.; and two counts of rape on an unconscious person on Angela R. Defendant agreed to plead nolo contendere to counts five and seven, with a sentencing lid of three years and eight months. He agreed to surrender his medical license and to lifetime registration as a sex offender. The remaining counts would be dismissed with a Harvey waiver.
Defendant accepted the prosecution's factual basis for the plea. As to Brenda M., immediately prior to breast reduction surgery, she was given medication to relax. Defendant entered the room, lifted her leg and raised her hospital gown. He touched her vagina with his bare hand; he pulled apart the labia and his fingers entered her outer vaginal lips. Defendant looked at her vagina. These actions were done for defendant's sexual compulsion, arousal, and gratification.
At an office visit before surgery, defendant told Jessica M. to remove her underwear. He had her hold her labia open while he took pictures of her vagina. He inserted his finger into her vagina. These actions were done for sexual compulsion, arousal, or gratification.
Defendant waived his rights and entered no contest pleas to counts five and seven. The trial court accepted the plea.
Motion To Suppress
Defendant contends the trial court erred in denying his motion to suppress evidence found in several searches of defendant's residence and office.*fn2 He contends the searches were flawed for two reasons. First, the first three search warrants were not supported by proper oaths. Second, there was no probable cause to support a search for evidence relating to Angela R.; there was only suspicion and stale evidence, and description of evidence was overbroad.
Sufficiency Of Oaths
A total of four search warrants were issued authorizing the search of defendant's home and office, and certain other places, for photographs and other information relating to numerous alleged victims. Each warrant was prepared by Detective Lisa Bowman and reviewed by a deputy district attorney. The first three warrants began with the same paragraph, differing only as to the number of pages referenced. The paragraph read:
"Sacramento Sheriff's Detective Lisa Bowman, swears under oath that the facts expressed by her in this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause, comprising a total of . . . pages, he/she has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests this Search Warrant be issued." (Bolding omitted.) The fourth search warrant began with the same paragraph, except that it added the words "are true" after "comprising a total of . . . pages." The attached affidavits (serving as the statement of probable cause) were not signed.
Defendant moved to suppress evidence, contending the affiant did not attest to the truth of the facts set forth to support probable cause. In response, the People asserted the omission of the words "are true" from the first three warrants was merely a typographical error and that Detective Bowman swore under oath that the facts were true.
By coincidence, the judge who heard the motion to suppress had been the magistrate who approved the search warrants. He said it was his consistent practice to swear the affiant before approving a warrant. The defense requested a hearing before a different judge at which the detective could testify as to whether she had been sworn. The court agreed.
At the separate hearing, Detective Bowman testified that she was sworn for each warrant. She did not recall the exact wording, but it was "something to the effect of do you swear this is true, in which I answered I do." She testified that after being sworn, she signed the search warrants. No reporter was present when she was sworn.
The court found the affidavits were adequate or the good faith exception of Leon (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677]) applied. Further, the affiant had been sworn.
The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.) The California Constitution contains parallel language. (Cal. Const., art. I, § 13.) This concept is embodied in Penal Code section 1525 which provides that "[a] search warrant cannot be issued but upon probable cause, supported by affidavit . . . ." The purpose of the affidavit requirement is to prevent perjury. (Clifton v. Superior Court (1970) 7 Cal.App.3d 245, 254.)
In People v. Leonard (1996) 50 Cal.App.4th 878, this court considered the effect of a search warrant with a defective oath. In Leonard, the officer swore that based on the information in the statement of probable cause, he had reason to believe property was seizable under Penal Code section 1524, but he did not swear the information was true. The statement of probable cause was not signed under oath. We held the affidavit was inadequate because it failed to aver the facts set forth in the statement of probable cause were correct.*fn3 (Leonard, at p. 883.) We found the failure of the affiant to swear to the truth of the information given to the magistrate was not a technical defect; "[i]t is a defect of substance, not form." (Ibid.)
The court distinguished the situation in Clifton, where the officer appeared before the magistrate and declared, without being sworn, that the statements in the affidavit of probable cause were true. (People v. Leonard, supra, 50 Cal.App.4th at p. 884.) The Clifton court found the affidavit sufficient, reasoning that although the officer's declaration was not sworn, his statements to the magistrate would constitute an oath if he were charged with perjury. (People v. Clifton, supra, 7 Cal.App.3d at p. 254.) In Leonard, the officer had not made a declaration to the magistrate as to the truth of the facts and thus could not be liable for perjury. (Leonard, at p. 884.)
Division Six of the Second District Court of Appeal disagreed with Leonard in People v. Hale (2005) 133 Cal.App.4th 942. In Hale, the court found the officer's oath that, based on the incorporated statement of probable cause, he believed there was probable cause to conduct a lawful search "necessarily implies that the facts contained in the statement of probable cause are true. No officer could have a belief in a lawful search based on a false statement of probable cause." (Id. at p. 947.)
The Hale court also noted a factor that distinguished the case from Leonard. (People v. Hale, supra, 133 Cal.App.4th at p. 947.) At the hearing on the suppression motion, the detective was called as a witness and testified that prior to issuing the warrant, the magistrate made the detective orally swear the facts in the warrant were true. Hale argued evidence of this oath was inadmissible under Penal Code section 1526. Subdivision (a) of that section required the magistrate to take the officer's affidavit in writing; subdivision (b) permitted an oral oath, but required it be recorded and transcribed. (Hale, at p. 947.) The court found the failure to record or transcribe the oath did not matter. The written oath on the face of the warrant was sufficient under subdivision (a) and the officer could be prosecuted for perjury under the oral oath. (Hale, at p. 948.)
We need not reconcile Leonard and Hale as to the adequacy of the oath on the face of the warrant. Unlike Leonard, and as in Hale, here the officer appeared before the magistrate and swore the facts in the affidavit were true. This oath made the officer liable for perjury and thus fulfilled the purpose of the oath. The search warrants were issued after the magistrate found probable cause "from facts or circumstances presented to him under oath or affirmation." (Nathanson v. United States (1933) 290 U.S. 41, 47 [78 L.Ed. 159, 162].)
Defendant contends the oral oath does not comply with the requirements of Penal Code section 1526, as amended after the decision in Clifton.*fn4 Subdivision (b) of that section permits an oral oath, but requires that it be "recorded and transcribed." (Pen. Code, § 1526, subd. (b)(1).) Subdivision (b), however, applies "[i]n lieu of the written affidavit." (Id., § 1526, subd. (b).) Here, there were written affidavits; the court examined the affiant on oath before issuing the warrants in accordance with Penal Code section 1526, subdivision (a).
Defendant also contends there was no probable cause to support the search warrant as to evidence relating to Angela R. He contends Angela's allegations of improprieties by defendant were weak and inconclusive. Furthermore, the evidence was over three years old and thus stale.
Probable cause exists for a search warrant when there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) The issuing magistrate need only make "a practical, common-sense decision . . . , given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information . . . ." (Ibid.) The probable cause standard is a "'practical, non-technical conception'" that focuses on probabilities that exist under a particular set of facts. (Id. at p. 231 [76 L.Ed.2d at pp. 543-544].) Probable cause describes reasons to be suspicious, not a prima facie case of guilt. (People v. Thuss (2003) 107 Cal.App.4th 221, 236.)
"Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale. [Citation.]" (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)
"Our task, as a reviewing court, is to determine whether 'the magistrate had a "substantial basis for . . . conclud[ing]" that a search warrant would uncover evidence of wrongdoing.' [Citation.] '"[A]ll conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged to uphold the findings of the [magistrate] if possible."' [Citation.] Moreover, doubtful or marginal cases should be resolved in favor of upholding the warrant." (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.)
The information in support of probable cause to search for evidence of defendant's crimes against Angela R. was set forth in the affidavit attached to the search warrant issued June 13, 2006. Bowman declared she was investigating possible sexual exploitation of Rebekah G., who saw defendant for a skin graft consultation following removal of a tumor. Rebekah complained defendant had her pose in inappropriate positions and took photographs of her vagina and buttocks without draping. In the course of this investigation, Bowman checked the sheriff's department records which listed defendant as a suspect in a complaint filed May 29, 2003, by defendant's then-girlfriend, Angela R.
Angela claimed that when she went to defendant's home on May 25, 2003, to discuss the end of their relationship, defendant gave her a strange tasting drink. The drink made her lethargic and she passed out. When she awoke six hours later and went home, she felt as if she had had sexual intercourse. Defendant would not immediately return her calls; when she finally confronted him, he told her he had a CD that he would send her co-workers. Since defendant was "'into taking pictures a lot,'" Angela feared he had taken pictures of her while she was passed out. When Angela told defendant the relationship was over, he threatened her. Angela did not follow through with this investigation and the case was closed.
In a recent conversation with detectives about her claims, Angela related that defendant was obsessed with vaginas. Once she had become intoxicated and allowed defendant to take close-up photographs of her vagina. She asked him to delete them and thought he had. She believed defendant had drugged her and had nonconsensual sex with her the night of May 25. She also believed he had photographed her and there was a "good possibility" the photographs were still around.
The affidavit also included information about defendant touching and photographing the vaginas of three of his patients. Bowman declared that based on her experience and those of other investigators, "individuals involved in sexual offenses often keep items of evidence within their residence consisting of property belonging to the victim" as mementos, trophies, or souvenirs. Bowman further opined that subjects engaged in criminal sexual activity "often engage in repetitive, compulsive and predictable behavior."
This affidavit provides probable cause to search defendant's residence for inappropriate photographs defendant may have taken of Angela while she was unconscious. Although the event she relayed occurred three years earlier, the evidence was not stale because Angela provided more recent information that defendant was obsessed with vaginas and his propensity to photograph vaginas without the full knowledge and cooperation of his subjects was corroborated by the recent reports by patients of his continuing improper behavior.
Defendant cites three cases for the proposition that evidence more than four weeks old is insufficient to establish probable cause. (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504; People v. Hulland, supra, 110 Cal.App.4th at p. 1652; Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434.) These cases do not aid defendant because they all involve a one-time sale of contraband. Instead, this case is more similar to People v. Mikesell (1996) 46 Cal.App.4th 1711. There, the court rejected an argument that information in the warrant was too stale to support a search for ongoing drug activity. The court found two- and four-year-old information still had value when, combined with more recent information, it "would justify a person of ordinary prudence to conclude that the alleged illegal activity had persisted from the time of the stale information to the present." (Id. at p. 1718.) "Courts have upheld warrants despite delays between evidence of criminal activity and the issuance of a warrant, when there is reason to believe that criminal activity is ongoing or that evidence of criminality remains on the premises. [Citations.]" (People v. Carrington (2009) 47 Cal.4th 145, 164.)
Defendant argues there was no new information to suggest evidence of a crime against Angela R. would be found in his house. We disagree. Evidence of defendant's obsession with taking photographs of women's genitals, a practice allegedly continuing well into 2006, and Bowman's expert opinion that sexual offenders keep trophies or souvenirs of their victims, provide a "fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, supra, 462 U.S. at p. 238 [76 L.Ed.2d at p. 548].)
Finally, defendant contends the warrant was overbroad in permitting a search for all photographs of Angela R. The warrant authorized a search for "[a]ny and all photographs of [three patients who had complained] and Angela R. Specifically, photographs where they can be identified. These are to include photographs of their faces, genitals, breasts and all of the body parts." It further authorized the search of cameras and computers to find these photographs. Defendant contends the information in the warrant did not support the seizure of "any photograph" of Angela, specifically the warrant did not authorize the seizure of a CD titled "Angela New Years 2003."*fn5 Defendant argues that since defendant and Angela had had a relationship, there were likely many photographs of her that were completely unrelated to any crime.
We find the description of evidence to be seized was not overbroad. The authorization for seizing photographs was limited to those showing the victims' identity, face, and particular body parts. This limitation tracked the information in the affidavit about defendant's practice of photographing intimate body parts of women. Further, the warrant specifically supported seizing a CD of Angela as defendant had told her he had a CD of her and threatened to send it to her co-workers.
Defendant suggests the seizure of photographs of Angela should have been limited to those related to the May 25, 2003, incident. Defendant's narrow interpretation of the Fourth Amendment is similar to one rejected by the California Supreme Court in People v. Kraft (2000) 23 Cal.4th 978, 1050: "Defendant seems to suggest that searching officers must have probable cause to connect each item seized with a particular murder victim, and that every such item be precisely described in the warrant, but he cites no authority for such an exacting interpretation of the Fourth Amendment." Here, defendant cites United States v. Gardner (6th Cir. 1976) 537 F.2d 861, a per curiam decision that held a warrant authorizing seizure of all firearms was overbroad where the affidavit showed, at most, probable cause to seize a specific firearm used in a robbery and murder. Gardner is distinguishable because here the affidavit established probable cause to seize a variety of photographs of women and their intimate parts.
"The vice of an overbroad warrant is that it invites the police to treat it merely as an excuse to conduct an unconstitutional general search." (People v. Frank, supra, 38 Cal.3d at p. 726.) Defendant has not shown that the police engaged in a general search or that they seized items that were not supported by the information in the affidavit. The search warrant was supported by probable cause.
Defendant contends the trial court abused its discretion in sentencing him to the upper term of three years in count five, sexual exploitation of a patient.*fn6 He contends the aggravating factors found by the court were either irrelevant, unsupported by the evidence, or "simply incorrect."
In selecting the upper term, the court focused primarily on the repeat behavior, that this was not an isolated incident followed by "great contrition and full grasp of the criminality of the issue." The court also noted there was planned behavior, breach of a position of trust, and that defendant objectified people and created a solipsistic world.
Defendant contends the trial court's reliance on the dismissed counts to show repeat behavior was "misplaced" because the evidence of the counts involving Jamie S. and Angela R. was unreliable. Three counts were based on allegations of Jamie S. Defendant performed reconstructive surgery on her jaw after her boyfriend broke it. On the one visit when she was not accompanied by her mother, defendant told her he needed to do a complete physical; he inserted his fingers in her vagina three times, but did not examine any other part of her body. One count alleged penetration with a foreign object on Brenda M. Another count alleged the same crime on Jessica M. Two counts charged sexual intercourse with a person unconscious of the nature of the act on Angela R. These charges were based on the incident where Angela alleged defendant drugged her and then had sex with her. She originally thought the incident happened on May 25, 2003, but with discovery of the CD, the amended information alleged it occurred January 1, 2003.
As part of the plea bargain, defendant entered a Harvey waiver to these dismissed counts. In People v. Harvey, supra, 25 Cal.3d at page 758, the court found "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant's sentence." To avoid the Harvey restriction, prosecutors often condition "their plea bargains upon the defendant agreeing that the sentencing court may consider the facts underlying the not-proved or dismissed counts when sentencing on the remainder." (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.) The defendant's agreement is known as a "'Harvey waiver.'" (Ibid.)
When the trial court took defendant's plea, the court explained the nature of a Harvey waiver to defendant. "A Harvey waiver means that while you wouldn't be pleading guilty or no contest to those remaining counts, you would waive any objection to the Court considering those counts for purposes of sentencing in this matter." Defendant said he understood and entered the waiver to the dismissed counts. By doing so, defendant waived his objection to the court considering those counts.
Defendant replies that the court could consider the dismissed counts, but such consideration should have concluded that the allegations were unreliable. Defendant stresses that a Harvey waiver is not "tantamount to a guilty plea to the dismissed or uncharged crimes." (People v. Myers, supra, 157 Cal.App.3d at p. 1168.) Defendant notes this court evaluated the facts underlying crimes dismissed with a Harvey waiver in People v. Munoz (2007) 155 Cal.App.4th 160, 167. Munoz, however, involved a different issue. The court found imposition of the upper term did not violate the right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] due to the Harvey waiver. (Munoz, at p. 168.)
Defendant's position that the trial court must determine the validity of the dismissed counts before using them for sentencing purposes would eliminate the utility of the Harvey waiver. At least a mini-trial would be required to determine whether credible and reliable evidence supported the dismissed counts subject to the waiver. If the prosecution was required effectively to prove these charges, it would have little incentive to dismiss the counts. If defendant believed the counts involving Jamie and Angela could not be proved, he could have declined to enter a Harvey waiver as to them.
As to the other aggravating factors, the defense conceded there was some planning involved in defendant's crimes. Although all violations of Business and Professions Code section 729 involve a breach of trust, the trial court distinguished between those cases in which the physician simply does something to the patient without her consent and those in which the doctor uses a ruse, leading the patient to believe the doctor's actions are medically necessary. The court found this case was of the second type, which it believed was a more egregious breach of trust than cases of the first type. Defendant argued his diagnosed narcissism was a mitigating factor. The court disagreed, finding there was more than narcissism. Defendant had created his own solipsistic world and probation would not address this problem.
The aggravating factors cited by the trial court supported the upper term. The court's focus was on the repeat nature of defendant's behavior. Given that the sole mitigating factor accepted by the court was defendant's lack of a criminal history, any error as to another aggravating factor would be harmless. (See People v. Osband (1996) 13 Cal.4th 622, 728 [a single aggravating factor can justify the upper term].)
Defendant faults the trial court for failing to set forth reasons for imposing consecutive sentences. The proposed sentence was set forth in the probation report and included a consecutive sentence. In his lengthy sentencing memorandum, defendant generally stated his disagreement with this sentence, but he addressed only the aggravating factors for the upper term; he raised no objection to a consecutive sentence. At the sentencing hearing, the People asked for a three-year, eight-month sentence. Defendant argued in opposition, but did not mention consecutive sentencing. Nor did he object when the court imposed a consecutive sentence without stating a reason or raise an objection when the court asked if there was anything further before concluding the hearing. His contention, therefore, is forfeited. (See People v. Scott, supra, 9 Cal.4th at p. 353.)
Defendant contends Scott does not apply because the trial court did not apprise the parties of its intended decision and give defendant a meaningful opportunity to object. In People v. Zuniga (1996) 46 Cal.App.4th 81, the court rejected a reading of Scott as requiring a tentative ruling in advance of the actual sentencing as too narrow. Zuniga concluded a "[m]eaningful opportunity to object" means that defendant has the opportunity to address the court on sentence and to object to the sentence imposed; "[i]n short, it refers to procedural due process which . . . requires notice and an opportunity to be heard." (Id. at p. 84; see also People v. Downey (2000) 82 Cal.App.4th 899, 915-916.) We agree with Zuniga.
Moreover, any error in failing to state reasons for consecutive sentences is harmless. In determining whether a sentencing error requires remanding for resentencing "'the reviewing court must determine if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error."'" (People v. Avalos (1984) 37 Cal.3d 216, 233.) Had the trial court been asked to provide a reason for consecutive sentences, the fact of multiple victims provides an obvious reason. Although this reason is not set forth in California Rules of Court, rule 4.425 as criteria affecting consecutive sentences, these criteria are not exclusive. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1060, disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18.) The "naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences." (Caesar, at p. 1061.)
Presentence Custody Credits
We deem defendant to have raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits. (Miscellaneous order No. 2010-002.) We conclude that the amendments apply to all appeals pending as of January 25, 2010. (In re Estrada (1965) 63 Cal.2d 740, 745 [amendments to statute lessening punishment for crimes applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying the rule of Estrada to an amendment involving conduct credits].)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Sen. Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Sen. Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Consequently, for the reason we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 25, 2010, applies retroactively to defendants sentenced prior to that date, we conclude the new rate provided in Penal Code section 2933 applies retroactively to include defendants who were sentenced prior to January 25, 2010.*fn7
Defendant received credit for 10 days of actual custody and 4 days of conduct credit. Under the new amendments, he is entitled to 10 days of conduct credit for a total of 20 days of presentence custody credit.
The judgment is modified to award defendant 10 days of conduct credit for a total of 20 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
RAYE , P.J.