Opinion
C085722
09-21-2018
THE PEOPLE, Plaintiff and Respondent, v. LIONEL PHILLIP JACQUES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE001361)
Appointed counsel for defendant Lionel Phillip Jacques asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding an error in the award of presentence credit, we will modify the award of credit and affirm the judgment as modified.
I
In November 2015, defendant placed his hand and mouth on the penis of 12-year-old William Doe. And sometime between March 1996 and March 2000, defendant placed his hand on the penis of Zachary Doe, who was between nine and 13 years old.
Defendant pleaded no contest to three counts of lewd acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).) He also admitted enhancement allegations for a prior sex offense conviction (§ 667.51) and for being a habitual sex offender (§ 667.71). In addition, he admitted allegations regarding prior serious felonies and prior strike convictions (§§ 667, 1170.12). The trial court imposed a stipulated term of 225 years to life plus 15 years, ordered various fines and fees, and awarded 1002 days of presentence credit (668 actual days and 334 conduct days). Defendant did not obtain a certificate of probable cause.
Undesignated statutory references are to the Penal Code. --------
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant.
Our review of the record discloses an error in the calculation of presentence credit.
Defendant's convictions under section 288, subdivision (a) constitute violent felonies. (§ 667.5, subd. (c)(6).) The trial court's award of 334 days of conduct credit for 668 days of actual presentence time is incorrect. Because defendant was convicted of violent felonies, he is entitled to conduct credit equal to 15 percent of his presentence time served. (§ 2933.1, subd. (c).) Fifteen percent of 668 is 100. An error in the calculation of presentence credit results in an unauthorized sentence, which can be corrected at any time. (People v. Duran (1998) 67 Cal.App.4th 267, 270.) We will modify the award of credit accordingly.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to award defendant 768 days of presentence credit, consisting of 668 days of actual credit and 100 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
HOCH, J.