Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR517130
Kline, P.J.
Homer Alvin Marchbanks, Jr., appeals from convictions entered on his plea of guilty to felony commercial burglary and misdemeanor battery. He contends he was wrongfully denied presentence custody credits for a portion of his time in custody. We dismiss the appeal pursuant to Penal Code section 1237.1.
STATEMENT OF THE CASE
Appellant was charged by a complaint filed on August 9, 2007, with felony commercial burglary (Pen. Code, § 459) and misdemeanor battery (§ 242). It was alleged that appellant had suffered a prior prison term within the meaning of section 667.5, subdivision (b). Appellant entered a plea of not guilty. On August 20, he changed his plea to guilty on both counts pursuant to a negotiated disposition under which the strike prior would be dismissed and appellant would be granted probation. On December 27, the court sentenced appellant to the aggravated term of three years in prison for the burglary, suspended execution of sentence, and placed appellant on three years’ formal probation. The conditions of probation included serving six months in county jail, with a provision that appellant could be released if bed space became available in a residential treatment program.
All further statutory references will be to the Penal Code.
On January 9, 2008, appellant’s probation was summarily revoked and a bench warrant was issued. The probation officer’s request stated that appellant had been placed in the Turning Point residential program on January 4, but left without permission the next day, failed to contact the probation officer, and could not be located. The warrant was served on January 24, and the matter was set for a probation violation hearing. At the hearing on February 19, appellant admitted violating probation by leaving his treatment program and absconding from probation. On May 6, the court revoked probation and executed the previously suspended three-year prison sentence for appellant’s commercial burglary conviction. The court awarded 154 days of credit for time served, consisting of 104 days of custody credit and 50 days of conduct credit.
Appellant filed a timely notice of appeal on May 13, 2008.
STATEMENT OF FACTS
According to the probation report, on July 31, 2007, appellant and codefendant Christina Marie White entered a Target store in Santa Rosa with an empty shopping bag in a shopping cart. As appellant pushed the cart, White put DVDs valued at $404.96 into the shopping bag, then the two bypassed the cash registers and left the store. Store security officers attempted to confront appellant and White, but they refused to return to the store. When one of the security officers took hold of White’s arm, appellant began to hit him. During the ensuing struggle, White bit the security officer’s arm. Appellant fled the scene. He was arrested on August 7, 2007 on an “unrelated matter” involving theft of a vehicle.
DISCUSSION
The presentence custody credits appellant was awarded were for the period running from January 24, 2008, the date he was arrested after leaving the Turning Point program, through May 6, 2008, the date he was sentenced. At the sentencing hearing, appellant’s attorney asked the court to “reinstate” 151 days of credit for the period from August 7, 2007 (when appellant was arrested on the burglary and battery charges) through January 4, 2008 (when he was released from custody and placed at Turning Point), stating that appellant “admittedly did waive” these credits at the time of sentencing in order “to get a program.” The prosecutor agreed that appellant had waived these credits and the court declined the defense request. Appellant now contends he was wrongfully denied presentence custody credits for the August 7 through January 4 period because he did not in fact waive them. Respondent argues that appellant’s claim is not cognizable under section 1237.1 and, on the merits, that appellant is entitled to additional credits only for the period from December 27, 2007 through January 4, 2008.
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.” Appellant contends this statute is inapplicable here because his claim does not involve mathematical “calculation” of credits, but rather the legal issue of whether he waived his right to these credits. Respondent urges, based on the language of section 1237.1, the purpose reflected in its legislative history and established rules of appellate forfeiture, that the statute should be interpreted to apply not only to arithmetic calculations but also where the defendant fails to object to the sentencing court’s factual or legal error in awarding credits.
As described in People v. Acosta (1996) 48 Cal.App.4th 411, 422-423: “When the legislation [to enact section 1237.1] was first brought before the Assembly Committee on Public Safety, one of the stated purposes was as follows, ‘This bill would codify developing case law requiring defendants to seek correction of clerical or mathematical error in calculation of presentence custody credits in the trial court to prevent misuse of appellate process for ministerial purpose.’ (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) Apr. 25, 1995.) The developing ‘case law’ was identified later in the same committee report as follows: ‘Case Law. Recently, the Court[s] of Appeal have expressed dismay that defendants have utilized the formal appeal process solely to correct an error in the calculation of presentence custody credits. [¶] In People v. Fares [(1993)] 16 Cal.App.4th 954, the defendant’s sole contention of error on appeal related to the computation of presentence custody credits made by the trial court at the time of sentencing. Apparently, the documentation was conflicting on whether the defendant was entitled to 41 days of presentence credits or only nine days. The Fourth District Court of Appeal found “the unusual mathematical calculation required to derive section 4019 credits from actual time served has given rise to a number of appellate pronouncements.” The Fourth District expressed its frustration with the recurring problem of addressing appeals involving the sole issue of credit calculation. [¶] The Fares Court explained there was not a time limitation upon the right to make the motion to correct the sentence. The Fares Court emphasized, “The calculation of custody credits in the ordinary case is little more than a ministerial review of the record and an arithmetic calculation. We can perceive no reason why a defendant should lose his entitlement to credits simply because of inadvertence or mathematical error of the court, the probation department or his own counsel.” (People v. Fares, supra, 16 Cal.App.4th at p. 959[.]) [¶] Although, the courts have voiced frustration at the recurring problem of addressing credit miscalculation on appeal, the courts have been reluctant to dismiss appeals and direct the defendants to seek their remedy in the trial court. This bill would prevent the appeal from even being filed without the defendant first having attempted to correct the error in the trial court. The proposed Penal Code section 1237.1 would thus promote judicial economy by avoiding the utilization of the formal appellate process for a minor ministerial act. The statute would not preclude a defendant the remedy of an appeal if the dispute as to the credits could not be resolved in the trial court.’ (Ibid.) Virtually the same language appeared in the report prepared for the Senate Committee on Criminal Procedure. (Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) May 16, 1995.)”
We find it unnecessary to decide in this case whether section 1237.1 was intended to apply only to claims of mathematical miscalculation or to other kinds of error relating to presentence custody credits as well. Appellant attempts to avoid application of the statute by characterizing his appellate claim as raising the legal question whether he validly waived the credits at issue. This characterization is not accurate: As is reflected above, the trial court was not asked to and did not determine whether appellant validly waived the credits at the original sentencing hearing, but simply accepted the parties’ representation that the credits had been waived. Appellant now correctly points out that, in fact, he waived only credits for time he might spend in a treatment program and credits for local custody exceeding one year. The exchange on the record at the original sentencing hearing makes clear that appellant did not waive presentence custody credits for the time he spent in jail prior to being placed in the residential treatment program, that is, for the period from August 7, 2007 through January 4, 2008. While appellant’s opening brief argues at length that appellant’s waiver was not knowing and intelligent, all this argument is beside the point because, as appellant states, he did not waive presentence custody credits for his time in local custody between August 7 and January 4, at all. What he seeks on appeal is simply correction of the trial court’s erroneous assumption that he did waive these credits and recalculation of his presentence custody credit to include this period.
At the original sentencing hearing, after stating that appellant was to serve six months in the county jail but could be released to a residential treatment program, the court asked appellant, “it’s my understanding you’re willing to waive any credits for time served you might accumulate while in that program; is that correct?” Appellant replied, “Yes.” The court then stated it understood appellant also “would waive your rights under the Johnson decision if local custody should exceed a year.” Again, appellant answered, “Yes.”
The relief appellant seeks is, in our view, precisely the type of error section 1237.1 was intended to address. Had the trial court not been incorrectly informed that appellant had waived presentence custody credits for the period of custody preceding placement in the residential treatment program, the trial court would have been able to calculate his credits to include that period. No question of law is involved in making this determination, only a simple reading of the transcript from the prior hearing. The real issue is what number of credits appellant is entitled to. Indeed, the parties’ briefs on appeal demonstrate that a mathematical calculation is precisely what is at issue: Respondent urges that if appellant’s claim is cognizable at all, he is entitled to only eight additional days of credit, not 151, because most of his custody time was attributable to the theft case and to a parole hold. Appellant, in turn, argues that the record is insufficient to support respondent’s assertions and that the parties and court, at the May 6 hearing, assumed appellant would have been entitled to the 151 credits if not for the (mistakenly assumed) waiver.
Section 1237.1 does not permit appellant to raise this issue on appeal without having first attempted to resolve it in the trial court. Because failure to award an adequate amount of presentence credits is a jurisdictional issue, “[t]here is no time limitation upon the right to make the motion to correct the sentence.” (People v. Fares, supra, 16 Cal.App.4th at p. 958; People v. Clavel (2002) 103 Cal.App.4th 516, 519; People v. Acosta, supra, 48 Cal.App.4th at p. 428, fn. 8.) This appeal must be dismissed, but appellant is free to pursue the appropriate remedies in the trial court. (People v. Clavel, supra, 103 Cal.App.4th at p. 519.)
Appellant suggests that if this court finds he forfeited the issue of presentence custody credits, we should find he received ineffective assistance of counsel due to his attorney’s statement that appellant waived the credits at issue. We do not find that appellant forfeited the issue but, rather, that his appeal at this juncture is precluded by statute. A claim of ineffective assistance is premature at this time because remedies remain in the trial court that would negate prejudice from any deficient representation at the May 6, 2008, hearing.
The appeal is dismissed.
We concur: Haerle, J. Richman, J.