Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA098297, Philip H. Hickok, Judge
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Boonmy Chum was sentenced to 35 years to life state prison after a jury convicted him of first degree residential burglary (Pen. Code, § 459) and he admitted two prior burglary convictions, alleged as prior strikes (§§ 1170.12, subds. (a) – (d); 667, subds. (b)-(i)) and prior serious felony conviction enhancements (§ 667, subd. (a)(1)). He was awarded 206 days actual custody and 26 days conduct credit for a total of 232 days presentence credit.
All statutory references are to the Penal Code.
Appellant appeals, contending that the trial court erred in impliedly finding that he was convicted of a violent felony (i.e., burglary of residence while "another person, other than an accomplice, was present in the residence . . . ." § 667.5., subd. (c)(21)) and limited his presentence conduct credits to a maximum of 15 percent. (See § 2933.1, subd. (c); People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.) We modify the judgment to reflect a total of 308 days presentence credit, and affirm the judgment as modified.
On November 22, 2006, appellant and two cohorts burglarized a Lakewood residence while the owner was at work. At the end of the trial, the prosecutor conceded that "no one was home" when the burglary was committed.
Appellant asserts that the trial court erred in assuming the burglary was a violent felony and that appellant could only earn a maximum of 15 percent in conduct credits. (See People v. Singleton, supra, 155 Cal.App.4th at p. 1337.) The Attorney General does not dispute the point but argues that the issue must be presented to the trial court. (§ 1237.1.) Section 1237.1, however, "does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal." (People v. Acosta (1996) 48 Cal.App.4th 411, 427; see People v. Mendez (1999) 19 Cal.4th 1084, 1101.)
Appellant has demonstrated that he was not convicted of a violent felony and is entitled to full conduct credits. (People v. Singleton, supra, 155 Cal.App.4th at p. 1337.) It is not simply a mathematical error in the calculation of presentence credits. (People v. Acosta, supra, 48 Cal.App.4th at p. 420.) Justice and judicial economy require that we correct the sentencing error. (Id., at p. 427; People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn 3.)
The judgment is modified to reflect that appellant is awarded 308 days presentence credit consisting of 206 days actual custody credit and 102 days conduct
credit. The clerk of the superior court is ordered to prepare and forward an amended abstract of judgment to the Department of Corrections. The judgment, as modified, is affirmed.
We concur: GILBERT, P.J., COFFEE, J.