Opinion
C089600
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. AKIVA AVIKAIDA ISRAEL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-157296)
Defendant Akiva Avikaida Israel pleaded no contest to first degree murder. The trial court sentenced him to an indeterminate term of 25 years to life. On appeal, defendant contends that the trial court incorrectly calculated his presentence credit and erred in requiring him to submit to AIDS testing under Penal Code section 1202.1. The People concede these errors. We accept the concessions, modify the judgment, and direct the trial court to prepare an amended abstract of judgment. As modified, we affirm the judgment.
Undesignated statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Defendant stabbed the victim, with whom he had previously had a romantic relationship, to death. He pleaded no contest to first degree murder. (§ 187, subd. (a).) At the sentencing hearing, the trial court sentenced defendant to a term of 25 years to life. The court also awarded defendant presentence custody credits, which the probation report calculated as 422 days.
The court also ordered AIDS testing, saying that: "I'm further ordering, given the information set forth in the probation officer's report, that there be testing pursuant to Penal Code Section 1202.1 given some of the exchange of bodily fluids."
DISCUSSION
Defendant contends, and the People concede, that the trial court's sentencing order must be modified to strike the requirement that defendant submit to an AIDS test under section 1202.1. Section 1202.1 requires the trial court to order AIDS testing for every person convicted of an enumerated sexual offense. Murder (§ 187) is not included in the enumerated offenses listed in section 1202.1. Thus, the court's order that defendant submit to AIDS testing was unauthorized. We accept the People's concession, and this portion of the trial court's sentencing order should be stricken.
Defendant also asserts that the trial court miscounted the number of days of presentencing credit he received. The court adopted the probation report's calculation of 422 days of credit, but defendant argues that he is actually entitled to 445 days. The People agree that defendant's calculation is the correct one.
Credit for time served prior to sentencing is to be calculated by the sentencing court at the time of sentencing, with the total number of days recorded in the abstract of judgment. (Cal. Rules of Court, rule 4.310; People v. Duff (2010) 50 Cal.4th 787, 793, citing § 2900.5, subd. (d).) The probation report calculated defendant's credit beginning from his arrest on January 7, 2018, to his sentencing on March 27, 2019. The report, and, by extension, the trial court, appears to have made a mathematical error, however, and determined that this period of time amounted to 422 days. It is actually 445 days. We will order the judgment modified.
DISPOSITION
The judgment is modified to award defendant 445 days of presentence credit and to strike the AIDS testing requirement. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications. The trial court is further directed to forward a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Butz, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Mauro, J.