Opinion
G055174
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. HECTOR CUEVAS, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF3621) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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Before Bedsworth, Acting P.J., Aronson, J., and Thompson, J.
A jury convicted defendant Hector Cuevas of: (1) shooting at an occupied motor vehicle (Pen. Code, § 246); and (2) possession of a firearm by a probationer (§ 29815, subd. (a)). Defendant pleaded guilty to possession of a short barreled shotgun (§ 33210), and admitted he possessed the shotgun to benefit a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to five years, eight months in prison (i.e., roughly 2,068 days in prison). The court initially awarded 1,521 total days of credits.
All further statutory references are to the Penal Code, unless stated otherwise. --------
After his sentence, defendant successfully moved the trial court to correct his abstract of judgment to reflect his accrual of 1,325 days of actual credit and 1,324 days of conduct credit, for a total of 2,649 days of credit. Defendant's presentence credits now exceed his prison sentence.
The only contention raised by this appeal is that the court erred when it declined to amend the abstract of judgment to specify that excess presentence credits should be applied toward defendant's parole period. Defendant asks this court to "order that his period of parole be reduced by 583 days."
The Attorney General concedes that defendant is correct with regard to the legal effect of his credits exceeding his prison sentence. (See People v. Lara (1988) 206 Cal.App.3d 1297, 1301-1303 [parole term reduced by excess credits].) The Attorney General nonetheless asserts that the court correctly declined defendant's request: "The duty to credit excess presentence credits against a period of parole rests with the Department of Corrections and Rehabilitation. If [defendant] has evidence that the Department of Corrections and Rehabilitation has failed to perform its duty, his remedy will be a petition for writ of habeas corpus."
We agree with the Attorney General. The power to determine the length of a parole period is vested in the Department of Corrections and Rehabilitation (Department). (§§ 3000, subd. (b), 3001.) Defendant's period of parole must be reduced by the time required to be credited against the parole period due to the excess time served before sentencing (Cal. Code Regs., tit. 15, § 2345). We must presume that the Department has and/or will properly perform its duty. (Evid. Code, § 664.) There is no contention here that the Department has failed to comply with its duties. Defendant's remedy for a failure by the Department is a petition for writ of habeas corpus. (See, e.g., In re Ballard (1981) 115 Cal.App.3d 647.) Neither the trial court nor this court is obligated to address this issue before the Department has failed to perform its function.
DISPOSITION
The judgment is affirmed.