Opinion
A131727
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. NICHOLES MURRAY HUNT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. SCN212747)
I.
INTRODUCTION
Nicholes Murray Hunt appeals from a four-year state prison term imposed after his probation was revoked. The sole issue raised on this appeal is his contention that the trial court miscalculated custody and conduct credits at sentencing, and that he is entitled to an additional 63 days of credit. (Pen. Code, § 4019.) We dismiss the appeal because it was brought without first filing a motion in the trial court for correction of the record. (§§ 1237, subd. (a), 1237.1.)
All statutory references are to the Penal Code, unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL HISTORIES
Appellant was arrested on June 14, 2010, and subsequently entered into a negotiated plea with the prosecution. As part of that agreement, appellant pleaded guilty to corporal injury on a spouse, former spouse, cohabitant, former cohabitant, or a parent of his or her child. (§ 273.5, subd. (a).) In return for his plea, other charges pending against him were dismissed by the prosecution, sentencing was suspended, and appellant was placed on three years probation with conditions, including that he spend 180 days in county jail, that he participate in a domestic violence program, and that he stay away from the victim. Appellant served 90 days of his county jail term before being released.
On October 19, 2010, probation was revoked when appellant failed to appear at a hearing, and a bench warrant was issued for his arrest. The warrant was recalled on October 22, and probation was reinstated. A new bench warrant was issued on November 5 after appellant failed to appear at another hearing. He was found at the victim's home on November 13, and was taken into custody.
Appellant was found to have violated the terms of probation at a contested hearing held on February 14, 2011, and probation was formally revoked on March 15. At that same time, appellant was ordered to serve four years in state prison; 363 days of credit were awarded for time served, consisting of 213 actual days in custody and 150 days of conduct credit. No objection was made to the calculation of credits at the sentencing hearing, and no motion has been filed in the trial court seeking a correction of any alleged sentencing errors.
Instead, a notice of appeal was filed on April 6, 2011.
III.
DISCUSSION
A defendant committed to state prison is generally entitled to time credit for good behavior while in local custody awaiting disposition and sentencing. (§ 4019.) Appellant maintains that he is entitled to total credits of 426 days: 213 custody credits, and 213 days conduct credits. He argues that since the trial court only awarded a total of 150 days of conduct credit, it erred and he is entitled to an additional 63 days of conduct credit under sections 4019 and 2933.
The Attorney General contends that no mistake was made, that credits are to be awarded under section 2933 by the California Department of Corrections and Rehabilitation (CDCR), and that any objections to the award of credits were waived by appellant's failure to make them below.
Although respondent claims on appeal that it is the CDCR, and not the superior court, that is to make the award of credits under section 2933, no claim of error is made by respondent because the trial court made the award in this instance, nor does respondent seek to vacate the award of credits.
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We do not reach appellant's claim because there is a fundamental problem with his appeal that bars our consideration of the issue raised. Section 1237.1 provides: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." No objection to the award of credits was made at appellant's sentencing, and no motion for correction in the trial court appears in the record on appeal. Appellant makes no claim to have filed such a motion. The appeal must be dismissed.
It is true, as appellant notes on appeal, that "[a] sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citations.]" But it is also true that "the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal" at least where, as here, no other issues are raised on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, fn. omitted.) "If a dispute arises as to the correct calculation of credit days, such [dispute] should be presented on noticed motion 'for resolution to the court which imposed the sentence and which has ready access to the information necessary to resolve the dispute.' [Citation.]" (People v. Fares (1993) 16 Cal.App.4th 954, 958.)
Indeed, appellant argues as much, albeit in counterpoint to respondent's claim that local custody credits awarded against state prison terms must be decided by the CDCR under section 2933:
"Finally, credits under section 2933 can be lost due to misconduct, failure to work, or commission of a crime. [Citation.] This determination is logically done at the local level, not though the CDCR, consistent with the intent of the Legislature in passing the most recent amendments." We see the same purported legislative intent reflected in section 1237.1, which requires bringing alleged credit errors to the attention of the local superior court rather than to the appellate court in the first instance.
Therefore, dismissal is required. (§§ 1237, subd. (a), 1237.1.) "There is no doubt . . . that the Legislature intended to require dismissal of an appeal where the only issue posited by the defendant involves an issue of presentence credits and the question was not preserved in the trial court." (People v. Acosta, supra, at 48 Cal.App.4th at pp. 425-426.) If appellant wishes to present the issue, he should do so in the trial court. (People v. Clavel (2002) 103 Cal.App.4th 516, 519.)
IV.
DISPOSITION
The appeal is dismissed.
RUVOLO, P. J. We concur: SEPULVEDA, J. RIVERA, J.