Morgain

The People charged appellant Markel Ray Morgain with first degree murder (Pen. Code, § 187). At trial, appellant’s girlfriend, Marquita Wallace, refused to answer questions about the incident and the trial court struck all of her testimony. The court, however, permitted the prosecutor to contend during closing argument that Wallace refused to testify to protect appellant. A jury convicted appellant and the court sentenced him to 51 years to life in state prison.

Appellant challenges his conviction on several grounds. First, he contends the court violated his Sixth Amendment right of confrontation by permitting the prosecutor to continue to question Wallace after she made it clear she would not answer any additional questions. Second, he argues the court violated his constitutional rights to confrontation and due process by allowing the prosecutor, during closing argument, to urge the jury to draw a negative inference from Wallace’s refusal to testify. Finally, appellant claims he is entitled to an additional day of presentence custody credit.

We agree with appellant’s final contention and conclude he is entitled to 249 days of presentence custody credit, not 248 days.…