Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027273
CANTIL-SAKAUYE, J.
Defendant Mark Brian Murray entered a negotiated plea of no contest to driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a)), and admitted three prior DUI convictions within 10 years. The trial court sentenced him to three years in prison. On appeal, defendant contends the trial court erred by denying him 22 days of presentence custody credits to which he is entitled. The People concede the error. We agree and shall order the trial court to amend the abstract of judgment.
BACKGROUND
Defendant was arrested on June 16, 2007, and was continuously in custody since then. His sentencing was originally scheduled for the following August 1, and a probation report was prepared which calculated his presentence custody credits -- 47 actual days -- based on an August 1 sentencing date.
But the sentencing hearing was continued two weeks to August 15. On August 15, the trial court sentenced defendant to three years in state prison, and awarded him presentence credits of 69 days: 47 actual days, plus 22 good conduct days. (Pen. Code, § 4019.) The calculation of defendant’s presentence custody credits thus made no provision for the fact that he had remained in custody during the two-week continuance of his sentencing hearing.
Defendant properly sought relief in the superior court (Pen. Code, § 1237.1); inexplicably, it was denied.
Penal Code 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.”
DISCUSSION
Defendant contends he should have been awarded custody credits for the period between his arrest on June 16 and his actual sentencing on August 15, rather than only for the period of June 16 to August 1, the date of his first scheduled sentencing hearing. The People concede his contention has merit, and the record supports it.
Defendant is entitled to 61 days actual custody credit, plus 30 days of conduct credit, for a total presentence credit of 91 days. (Pen. Code, § 4019.) We shall so modify the judgment and direct the superior court to amend the abstract of judgment to reflect 22 additional days of custody credits. (Pen. Code, § 2900.5.)
DISPOSITION
The judgment is modified to award defendant 22 additional days of custody credit. As amended, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J. RAYE, J.