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People v. Beville

Court of Appeal of California
Jul 30, 2008
E043921 (Cal. Ct. App. Jul. 30, 2008)

Opinion

E043921

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. RODNEY RAMONE BEVILLE, Defendant and Appellant.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, and Rhonda L. Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published


The court found defendant in violation of a condition of his probation and sentenced him to the previously stayed term of two years imprisonment. In calculating the award of defendants presentence custody credits, the court utilized a previous courts determination that defendant had formerly acquired an aggregate of 369 days of custody credits, consisting of 247 days actual and 122 days good conduct. On appeal, defendant contends the court erroneously failed to give him three days actual and two days good conduct credits. The People concede the issue. We agree and direct the trial court to award defendant the additional credits.

I. FACTS AND PROCEDURAL HISTORY

On May 17, 2006, a jury convicted defendant of felony stalking (count 2—Pen. Code § 646.9, subd. (b)) and contempt of court (count 3—Pen. Code, § 166, subd. (a)(4)) after he violated a restraining order by harassing his father. The trial court also found defendant in violation of his previously imposed probation by virtue of his convictions in the instant matter. The court granted defendant three years of formal probation on various terms and conditions for his current convictions and credit for time served for his violation of probation.

On November 6, 2006, the probation department filed a memorandum alleging defendant violated the terms of his probation requiring that he report to his probation officer and enroll in an anger management class. On November 30, 2006, defendant admitted the truth of the allegations. The court imposed the low term of two years incarceration on count 2, execution of which was suspended so long as defendant successfully completed probation. The court initially noted that defendant had acquired an aggregate of 369 days of presentence custody credits, consisting of 247 days of actual time served and 122 days of good conduct; however, prior to the completion of the hearing, the court stated: "And for the Courts record, Probation informed me [defendant] has an additional three days of credit, so it would be a total of 250, plus 124." The probation officer replied, "Thats correct, Your Honor. It includes the last three days hes been in custody." The court resolved that "[w]ell modify the sentence then to reflect that [defendant] has credit for time served of 250 actual, 124 good conduct, for a total of 374 days time served." The minute order for that hearing date reflects only the courts initial notation of 369 total days of custody credits, consisting of the 247 days of actual time served and the 122 days of good conduct.

On June 5, 2007, the probation department filed a memorandum alleging defendant violated the term of his probation requiring that he obey all laws. Defendant threatened to kill the maintenance man and manager of the apartment complex he was being evicted from. The memorandum reiterated the initial determination of defendants custody credits as the aggregate of 369 days. On July 9, 2007, after a contested hearing, the court found defendant in violation of his probation. On disposition, the court noted that defendant had initially been awarded 365 days of credit, including 270 actual days; defense counsel "corrected" the court by stating it was really 247 days of actual credit; and the People further "clarified" that it was 251 days of actual credit. The court imposed the previously stayed two-year term on count 2, awarding defendant aggregate custody credits based on defense counsels representation that his previously served actual credits amounted to 247 days. The new aggregate custody award amounted to 423 days, consisting of 283 actual days and 140 days of good conduct.

After filing his notice of appeal, defendant filed a motion in the trial court for correction of the award of custody credits. The court denied that motion.

II. DISCUSSION

Defendant contends the court erroneously calculated his award of custody credits based on the uncorrected minute order dated November 30, 2006; therefore, depriving him of a total of five days credit; three days actual and two days good conduct as ordered modified by the court on that date. He maintains the total award of custody credits ordered on July 9, 2007, should be 428 days consisting of 286 actual days and 142 good conduct days. He further avers the minute order dated November 30, 2007, must be ordered corrected to reflect the actual award of 374 days of credit; 250 days actual and 124 days of good conduct. The People concede the issue. We agree.

Penal Code section 2900.5 provides, in pertinent part, that the total number of days a defendant spends in custody, including days awarded pursuant to good conduct, shall be credited against defendants term of imprisonment. (People v. Johnson (2002) 28 Cal.4th 1050, 1052.)

Here, the trial courts award of the aggregate amount of custody credits of 423 days, consisting of 283 actual days and 140 days of good conduct, was calculated, in part, on the previous courts award of 369 total days of credit based on defendants prior accumulation of 247 days actual and 122 days good conduct. However, that calculation erroneously excluded the additional three days of actual and two days of good conduct the previous court itself concluded defendant was entitled to. Indeed, the probation officer informed the previous court that defendant was entitled to an additional three days actual credit and two days good conduct credit based on the last three days he had been in custody. That court ordered the sentence modified to include those additional days for a total of 374 days, consisting of 250 days actual and 124 days good conduct. Nevertheless, the clerk failed to modify the sentencing minute order for that date to reflect this correction. Therefore, defendants ultimate award of custody credits deprived him of the five additional days, three actual and two good conduct, that the previous court and probation officer determined he was entitled to. Thus, we shall order the trial court to correct the minute order dated November 30, 2006, to reflect an aggregate award of 374 days of custody credits, consisting of 250 days actual and 124 days good conduct. Likewise, the court is directed to correct the minute order dated July 10, 2007, and the abstract of judgment to reflect a total award of 428 days of custody credits; 286 days actual and 142 days good conduct.

III. DISPOSITION

The judgment is affirmed. The trial court is directed to correct the minute order dated November 30, 2006, to reflect an aggregate award of 374 days of presentence custody credits, consisting of 250 days actual and 124 days good conduct. Furthermore, the trial court is directed to correct the minute order dated July 10, 2007, and the abstract of judgment to reflect a total award of 428 days of presentence custody credits; 286 days actual and 142 days good conduct. The trial court is directed to deliver a certified copy of the corrected minute orders and abstract of judgment to the Department of Corrections and Rehabilitation.

We concur:

Ramirez, P.J.

Miller, J.


Summaries of

People v. Beville

Court of Appeal of California
Jul 30, 2008
E043921 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Beville

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RODNEY RAMONE BEVILLE, Defendant…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

E043921 (Cal. Ct. App. Jul. 30, 2008)