Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01338
BUTZ, J.Defendant Thomas Christophe Mulvaney threatened, pushed, and choked his live-in girlfriend and hit and choked her 15-year-old son. He was charged with making criminal threats (Pen. Code, § 422), inflicting corporal injury upon his cohabitant (§ 273.5, subd. (a)), and willfully harming a child (§ 273a, subd. (a)). He pleaded no contest to all three offenses in exchange for a sentencing lid of one year. The trial court placed defendant on five years of formal probation on conditions, among others, that he serve one year in county jail, with credit for 62 days time served; have no contact with his girlfriend’s 15-year-old son; and participate in a batterer’s program (§ 1203.097, subd. (a)(6)). The court also imposed various fines and fees, including a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 probation revocation fine (§ 1202.44), and ordered defendant to pay $317 in restitution (§ 1202.4, subd. (f)).
Undesignated statutory references are to the Penal Code.
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 have elapsed, and we have received no communication from defendant.
While this case was pending on appeal, defendant’s appellate counsel sought additional days of presentence custody credit in the trial court on the ground that the trial court failed to award defendant any conduct credits. (§§ 1237.1, 4019; People v. Fares (1993) 16 Cal.App.4th 954, 958.) The motion was summarily denied.
Having reviewed the record, we conclude defendant is entitled to an additional 30 days of presentence custody credit.
Section 2900.5, subdivision (a) provides, in pertinent part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . ., all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment.” (Italics added.)
Under section 4019, a person confined in county jail following arrest and prior to imposition of sentence for a felony conviction is entitled to conduct credits “unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff.” (§ 4019, subds. (a)(4), (c).) The People have the burden to show that a defendant is not entitled to section 4019, subdivision (c) credits. (People v. Duesler (1988) 203 Cal.App.3d 273, 276.)
Here, defendant was confined in the Sacramento County Jail following his arrest and prior to the imposition of sentence for 62 days (from February 9 to April 11, 2007). The People did not argue, and the trial court did not find, that defendant was not entitled to section 4019, subdivision (c) credits. Under these circumstances, we conclude the trial court erred in failing to award defendant such credits and shall order the judgment modified accordingly. Pursuant to In re Marquez (2003) 30 Cal.4th 14, 26, we calculate defendant’s conduct credits as follows: We take the number of actual custody days (62) and divide by 4 (discarding any remainder), which leaves 15. We then multiply the result by 2, resulting in a total of 30 days of conduct credit in addition to the 62 days of actual credit, for a total of 92 days of credit. (See § 4019, subd. (f).)
In the interest of judicial economy, we correct this unauthorized omission and error without having requested supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to award defendant 92 days of presentence custody credits (62 actual and 30 conduct). As modified, the judgment is affirmed. The trial court is directed to amend the minute order and order of probation to reflect the modification, and to send a certified copy of the amended order to the Sacramento County Probation Department.
We concur: DAVIS , Acting P.J., RAYE , J.