Opinion
C041319.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH C. KELLEY, Defendant and Appellant.
Pursuant to a negotiated plea agreement in case No. A42917, on February 26, 1998, defendant Kenneth C. Kelley pleaded no contest to child endangerment (Pen. Code, § 273a, subd. (a)), evading an officer (Veh. Code, § 2800.2), and driving under the influence (Veh. Code, § 23152, subd. (a)). As part of the agreement, defendant admitted a prior conviction for driving under the influence and a prior prison term (Veh. Code, § 23175.5; Pen. Code, § 667.5, subd. (b)). It was agreed defendant should receive no more than five years in prison. Execution of a five-year prison sentence was suspended, and defendant was committed to the narcotic addict program at the California Rehabilitation Center (CRC). (Welf. & Inst. Code, §§ 3050, 3051.)
In case No. 62022863, filed on September 19, 2001, defendant was charged with committing new crimes on July 1, 2001. On May 1, 2002, pursuant to another negotiated plea agreement, defendant pleaded no contest to felony driving under the influence and admitted a prior felony conviction for driving under the influence (Veh. Code, §§ 23152, subd. (a), 23550.5), with the understanding that he would be excluded from CRC for case No. A42917. It was agreed that an eight-month consecutive sentence would be imposed in addition to the five-year sentence already imposed and suspended in case No. A42917.
The trial court received a probation officers report after sentencing detailing the applicable credit. The trial court awarded defendant credit for 1,084 actual days, plus 56 days of conduct credit in case No. A42917, and 2 actual days in case No. 62022863.
Because the issues on appeal solely concern custody credits, a statement of the facts of the crime is unnecessary.
During the pendency of this appeal, defendant filed a motion in the trial court to correct the calculation of presentence credit as required by Penal Code section 1237.1. The trial court did not act before the opening brief was filed. Hence, defendants opening brief addresses a number of presentence credit issues. The People concede all defendants arguments of error in its brief.
Penal Code 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." (Pen. Code, § 1237.1.) This motion was filed on August 30, 2002, and is a formally prepared and noticed motion. (See People v. Clavel (2002) 103 Cal.App.4th 516.)
On December 3, 2002, the trial court issued an order modifying its award of custody credits, which has now been filed with this court.
In his reply brief (filed after the trial courts postsentence order), defendant concedes that all the corrections requested in his opening brief have been ordered by the trial court, with one exception. Defendant also raises a new claim of error not included in his opening brief or in his postsentence motion. We shall modify the judgment to correct the claim of error raised in defendants opening brief but decline to address errors not raised.
First, as the People agree, defendant did not receive credit for February 29, 2000, which was spent in CRC custody. In leap years, when February has an extra day, the court must count the additional day of actual time served. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) Therefore, as defendant contends in his opening brief, he spent 308 actual days in CRC (not 307) from January 6, 2000, through November 8, 2000. This gives defendant credit for one more day.
We presume the trial court followed the usual procedure that CRC should calculate actual days served in its custody. However, since there is no quarrel about the actual dates served, the issue is one of law. (People v. Buckhalter (2001) 26 Cal.4th 20, 33-34.)
Second, in its postsentence order, the trial court reiterated its order from the abstract of judgment that credit for defendants stay in jail on July 1, and July 2, 2001, was applicable only to case No. 6222863. Defendant now argues that these two days should be credited to both cases. The purpose of this argument is that adding all the county jail time together on one case would entitle defendant to more conduct credit. As it now stands, defendant gets no conduct credit for these two days because county jail time of less than four days merits no conduct credit. (Pen. Code, § 4019; People v. Smith (1989) 211 Cal.App.3d 523, 527.)
The actual order states "The defendant is entitled to 2 days of actual time credit in case 62-22863.")
Defendants argument for dual credit for these two days is based on his claim that the arrest on the new case (No. 6222863) was the cause of defendants exclusion from CRC on the earlier case. Defendant argues, without citation to the record, that this conduct resulted in the revocation of his CRC outpatient status.
Defendant failed to raise this argument in the trial court or in his opening brief. An argument raised for the first time in a reply brief is deemed waived unless good cause is shown for failure to present it before. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Hence, this issue is not properly before us.
We shall order the abstract of judgment amended to add credit for one additional actual day. (Pen. Code, § 2900.5, subd. (d) ["The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213."].)
DISPOSITION
The judgment is modified to correct the sentence by awarding defendant credit for 1,095 actual days and 166 days of conduct credit in case No. A42917. All other credit awards shall remain in effect. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment showing the correct number of presentence custody credits and to forward a certified copy to the Department of Corrections.
We concur: SCOTLAND, P.J., RAYE, J.