Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050417097
Pollak, Acting P.J.
Following remand from this court to vacate portions of a six-year sentence imposed on defendant Oscar Maurice Pearson for burglary and related offenses, defendant appeals from the modified three-year sentence entered on March 21, 2008, contending that the trial court incorrectly calculated his custody credits. Since defendant was in custody prior to and following his conviction for 209 days in excess of the three years to which he was properly sentenced, pursuant to Penal Code section 2900.5, subdivision (a) he was entitled to monetary credits for the excess period against the fines imposed in connection with the conviction. Although the trial court did offset the monetary credits against a restitutionary fine of $600, defendant contends that the custody credits were not properly calculated and that the court failed to apply the monetary credits to which he was entitled to “the remaining balance, if any, o[f] fines and fees imposed at the original sentencing.” Although in the trial court defendant questioned the order placing him on parole (with credit against the parole period for the excess period in confinement, reducing the parole period to 14 months) on the ground that he had served his full sentence and therefore was not required to be placed on parole, he did not challenge the computation of his custody credits or the amount of the resulting monetary credit nor, so far as the record before us indicates, did he make a motion in the trial court to correct the calculation. Defendant now disputes the calculation and application of the custody credits. However, he acknowledges that “the amount of fines and fees originally imposed cannot be determined from the current record” and that “[t]he total actual days of credit to be applied to appellant’s matter cannot be determined from the current record.” He therefore asks that the matter again be remanded “for calculation of his total days of credit for purposes of monetary credits against fines, and for day-credits against his parole period.”
We have reviewed the supplemental letter brief prepared and submitted in propria persona by defendant, in which defendant asserts that the issue was raised in the superior court by a petition for a writ of habeas corpus that he filed with respect to his subsequent arrest, confinement and denial of bail on other charges. His petition in those proceedings did not raise the issue which he seeks to raise by this appeal. Moreover, any challenge he may have to the denial of that petition is not before us on this appeal.
As the Attorney General points out, to which defendant offers no comment in his reply brief, Penal Code section 1237.1 provides as follows: “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.” Since the custody credits in question here are both presentence credits and credits accruing following the imposition of sentence, an argument could perhaps be made that section 1237.1 does not apply. However, no such argument has been made and the reasons for which the statute was adopted seem fully applicable in the present situation. (See People v. Acosta (1996) 48 Cal.App.4th 411, 423-425.) Since this appeal raises no issue other than the proper calculation of custody credits, and since the issue was not first presented to the trial court, the appeal was not properly taken. (Id. at pp. 419-420.) Moreover, since the record admittedly is insufficient to determine the credit to which defendant is entitled, we cannot evaluate his contentions. (In re Salazar (1962) 205 Cal.App.2d 102, 105 [“ ‘An appellate court is not required to pass on any question not presented by the record on appeal. The burden is upon the appellant to present a record which will enable the appellate court to review and correct alleged errors and in the absence of a proper record, the appeal will be dismissed’ ”]; see People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.)
The appeal is dismissed, without prejudice to any proper application defendant may see fit to make in the trial court.
We concur: Siggins, J., Jenkins, J.