Opinion
A129037
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. AXEL DIAZ-HIGAREDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-522386)
Defendant Axel Diaz-Higareda was involved in a gang confrontation in which his confederate shot and killed a rival gang member. Defendant and his confederate, Jesse Morales, were charged with murder and participation in a criminal street gang while promoting criminal conduct by the gang. (Pen. Code, §§ 186.22, subd. (a), 187, subd. (a).) Pursuant to a negotiated disposition, defendant entered a no contest plea to the lesser charge of voluntary manslaughter and admitted the gang enhancement. (Pen. Code, §§ 186.22, subd. (a), 192, subd. (a).) In exchange for his plea, the prosecution dismissed all other charges and stipulated to a six-year prison term.
A separate appeal by co-defendant Morales is pending in this court. (People v. Morales (A129481, app. pending).)
Defendant appeals. He contends that the trial court miscalculated custody and conduct credits at sentencing and that he is entitled to an additional 29 days of credit. (Pen. Code, § 4019.) We dismiss the appeal because it was brought without first filing a motion in the trial court for correction of the record. (§§ 1237, subd. (a), 1237.1.)
Defendant has also filed a petition for a writ of habeas corpus raising distinct claims. We deny that petition today by separate order.
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I. DISCUSSION
A defendant committed to state prison is generally entitled to time credit for good behavior while in local custody awaiting disposition and sentencing. (Pen. Code, § 4019.) A defendant convicted of violent felonies, like voluntary manslaughter, receives 15 percent of the actual time spent in custody. (Pen. Code, §§ 667.5, subd. (c)(1), 2933.1, subd. (a).)
Defendant was booked into custody in October 2007 and sentenced in June 2010. The total time served was 989 days, according to the probation officer. However, as part of the plea bargain, defendant agreed to waive credit for 180 of those days, which represented the time between the prosecutor's first offer of a stipulated six-year term in late 2009 and defendant's eventual acceptance of a negotiated disposition of that term in May 2010. During plea bargain negotiations, the prosecution explained to defense counsel that the waiver was requested to "balance the scales of justice by constructively returning us to November 2009 when this case should have been resolved." Pursuant to the waiver, defendant received 809 days of custody credit (989 actual days minus 180 waived days). The conduct credits were then calculated on this reduced number of custody credits. Defendant received 121 days of conduct credits—15 percent of 809 is 121.35, and credits are rounded to the greatest whole number not exceeding 15 percent. (People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.) Together, the 809 custody credits and 121 conduct credits total 930 days, and that is the number of days awarded to defendant.
Defendant maintains that he is entitled to a total credit of 959 days: 810 custody credits (990 actual days minus 180 waived days) plus 149 conduct credits (15 percent of 990 actual days in custody, rounded upward). Defendant arrives at this figure by (1) adding 1 day of actual custody time based on defendant's claimed arrest date of October 6, 2007 versus the booking date of October 7, 2007 used by the probation officer to calculate time in custody; (2) calculating conduct credits on all days in custody, even the 180 days he waived; and (3) rounding the conduct credit number upward, beyond the 15 percent limit. Defendant asserts that the presentence credit "mistake[]" and "miscalculation" were "undetected" at sentencing and asks us to correct it on appeal. The People assert that there was no mistake. On the second point raised by defendant, the People note that the waiver included in the plea bargain was meant to account for defendant's delay in resolving the case and argue that the waiver included a waiver of both actual custody time and credit for good conduct during that custody time.
We do not reach this argument because there is a fundamental problem with defendant's appeal that bars our consideration of the issue. 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." No motion for correction in the trial court appears in the record on appeal, and defendant makes no claim to have filed such a motion. The appeal must be dismissed.
It is true, as defendant notes on appeal, that "[t]he failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time." (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.) But it is also true that "the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal" at least where, as here, no other issues are raised on appeal. (Id. at p. 428.) "If a dispute arises as to the correct calculation of credit days, such [dispute] should be presented on noticed motion 'for resolution to the court which imposed the sentence and which has ready access to the information necessary to resolve the dispute.' " (People v. Fares (1993) 16 Cal.App.4th 954, 958.) These considerations apply with special force here, where the sentencing court is in the best position to resolve the parties' disagreement over the scope of defendant's waiver of presentence credits, which was a term discussed by the sentencing court when accepting the plea. Dismissal is required. (§§ 1237, subd. (a), 1237.1.) "There is no doubt . . . that the Legislature intended to require dismissal of an appeal where the only issue posited by the defendant involves an issue of presentence credits and the question was not preserved in the trial court." (Acosta, supra, at pp. 425-426.) If defendant wishes to present the issue, he should do so in the trial court. (People v. Clavel (2002) 103 Cal.App.4th 516, 519.)
II. DISPOSITION
The appeal is dismissed. (§§ 1237, subd. (a), 1237.1.)
Sepulveda, J.
We concur:
Ruvolo, P.J.
Reardon, J.