Opinion
A147296
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. DAHOOD S. BEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H57092B)
Dahood Bey appeals from his conviction of multiple counts arising from his operation, along with others, of a security firm and a janitorial service that submitted false paperwork to obtain public contracts. He raises only one issue on appeal, namely, a clerical error in the abstract of judgment with respect to his custody credits. The Attorney General acknowledges error and concedes the error should be corrected. We therefore order the abstract of judgment modified to reflect the correct number of days of custody credit and otherwise affirm.
I. BACKGROUND
The charges in this case were filed against a group of six individuals affiliated with the Black Muslim Temple in Oakland, who operated a security firm and a janitorial service, and who submitted false paperwork to obtain public contracts. The paperwork falsely stated that certain principals of the firms had educational backgrounds they did not have, experience with law enforcement and the military they did not have, and insurance, licenses and job references they did not have. Bey was identified as "the leader of the group" in the operations that led to the charges. He was charged with one count of conspiracy to offer a false or forged instrument to be filed (Pen. Code, §§ 182, subd. (a)(1), 115) (Count 1), 16 counts of offering a false or forged instrument to be filed (§ 115) (Counts 2, 4, 5, 6, 8-13, 17-22), three counts of grand theft (§ 487, subd. (a)) (Counts 3, 7, 23), three counts of tax evasion (Rev. & Tax. Code, § 19706) (Counts 34-36), one count of offering false evidence (§ 132) (Count 40), one count of preparing false documentary evidence (§ 134) (Count 41), and one count of conspiracy to operate as a private patrol operator without a license (§ 182, subd. (a)(1); Bus. & Prof. Code § 7582.2, subds. (a) & (b)) (Count 42). As to Bey, the information further alleged counts 1 through 10 involved a pattern of related felony conduct resulting in a loss of more than $500,000 (§ 186.11, subd. (a)), and counts 1, 3, and 7 involved a loss in excess of $200,000 (§ 12022.6, subd. (a)(2)).
Statutory references, unless otherwise indicated, are to the Penal Code.
On July 1, 2015, the trial court, on Bey's section 995 motion, dismissed counts 11 and 12. On October 6, 2015, the court dismissed counts 40, 41, and 42 on the People's motion, and Bey entered a plea of no contest to all remaining counts (counts 1-10, 13, 17-23, 34-36) and enhancements. The plea involved a stipulated five-year prison sentence.
On November 5, 2015, the court sentenced Bey to five years in state prison pursuant to the plea agreement. Bey received the upper term of three years for count 1, conspiracy to offer false or forged instruments to be filed. He received three additional consecutive 8 month terms for count 13 (§ 115, subd. (a)), count 17 (§ 115, subd. (a)), and count 23 (§ 487, subd. (a)). All remaining counts were run as concurrent upper three-year terms. The sentencing court stayed the punishment for the two enhancements pursuant to section 186.11, subdivision (a) and section 12022.6, subdivision (a)(2).
II. DISCUSSION
At Bey's sentencing hearing, the trial court found he had served 352 days in actual custody and therefore was entitled to credit for those days, as well as day-for-day conduct credit, resulting in 704 days of credit total. Nevertheless, the abstract of judgment reflects 350 days of actual credit and then gives the correct number of conduct credits (352 days) and the correct total days of credit (704 days).
Bey filed a letter motion in superior court seeking to have the abstract corrected. (People v. Fares (1993) 16 Cal.App.4th 954, 958, 960; § 1237.1.) The trial court agreed there was clerical error but declined to correct the abstract because Bey had been paroled. Bey now claims the abstract should be corrected by this court. We agree we have the authority to correct such a clerical error, including errors which result in the abstract not accurately reflecting the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Zackery (2007) 147 Cal.App.4th 380, 388-389, 394; People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Although Bey has been released on parole he still "is subject to substantial restraints on his liberty and is deemed to remain in the constructive custody of the Department of Corrections and Rehabilitation." (People v. Nuckles (2013) 56 Cal.4th 601, 609.) The "service of parole is part of the punishment imposed following a defendant's conviction." (Id. at p. 610.) An incorrect entry regarding custody credits in the abstract of judgment can affect a defendant's parole period. (§ 2900.5, subds. (a) & (c) [presentence custody credits may reduce time served in prison and on parole].) The Attorney General concedes error and agrees it must be corrected.
III. DISPOSITION
The clerk of the superior court shall prepare an amended abstract of judgment to reflect 352 days of actual conduct credit. In all other respects the judgment is affirmed. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Kennedy, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------