Opinion
F074415
02-13-2018
THE PEOPLE, Plaintiff and Appellant, v. JOSEPH ALFREDO MENDOZA, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F14905255, F16904655)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Glenda Allen-Hill, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Appellant Joseph Alfredo Mendoza contends the trial court failed to award him the correct number of presentence custody credits. As the People point out, this issue was not raised in the trial court either at the time of sentencing or any time thereafter. We dismiss the appeal as barred under Penal Code section 1237.1.
Further statutory references are to the Penal Code. --------
BACKGROUND
Appellant pled no contest and received two years of felony probation for possession of drugs in a jail facility (§ 4573.8) in September 2015 in case No. F14905255 (case #1). In August 2016, appellant pled no contest to making criminal threats (§ 422) in case No. F16904655 (case #2), and also admitted violating probation for testing positive for drugs and for failing to obey all laws.
The trial court sentenced appellant on September 7, 2016, to one year four months in each case, with both sentences running concurrently. In case #1, the court awarded appellant 173 days of custody credits, consisting of 85 actual days, 84 conduct credits, and 4 treatment days for the period between January 14, 2014, and April 8, 2014. In case #2, the court awarded appellant 97 days of custody credits, consisting of 49 actual days and 48 conduct credits for the period between July 21, 2016, and sentencing on September 7, 2016.
DISCUSSION
Appellant contends that because the trial court sentenced him in both proceedings for the same conduct, he is entitled to custody credit in case #1 for the time spent in custody in case #2 between July 21, 2016, and September 7, 2016, pursuant to section 2900.5, subdivision (b). Appellant asserts the conduct was the same in both cases because that "the gravamen of the probation violation was the conduct that gave rise to the violation of Penal Code section 422" and that "[t]he admission that he failed drug tests was added only to make him eligible for a treatment program."
We need not determine whether the inclusion of the drug admission as grounds for violating probation affected appellant's entitlement to custody credits. Pursuant to section 1237.1, a defendant may not challenge on appeal the calculation of presentence custody credits unless the issue has first been presented to the trial court. 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, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction."
Although exceptions exist where multiple appellate issues are presented, when the sole issue raised on appeal seeks recalculation or award of additional custody credits, an appellant must first file a motion with the trial court to correct the error. (People v. Fares (1993) 16 Cal.App.4th 954, 959-960; People v. Clavel (2002) 103 Cal.App.4th 516, 518.) A motion is not only required by statute, but also necessary to make the proceedings part of the record and compel judicial response. (People v. Clavel, supra, 103 Cal.App.4th at p. 519.) "By implication, and a fortiori, it allows, if not requires, the Court of Appeal to decline to address a question of this sort unless [the defendant] has complied." (People v. Mendez (1999) 19 Cal.4th 1084, 1100.) Moreover, there is no time limitation upon the right to make a motion to correct an award of presentence custody credits. (People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138.) Amendment to section 1237.1, effective January 1, 2016, further clarifies that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction." (Stats. 2015, ch. 194, § 2.)
In replying to this court, appellant fails to point to anywhere in the record suggesting he questioned his custody credits before the trial court, either before or after sentencing. Instead, appellant argues section 1237.1 only bars appellate review where a trial court arithmetically miscalculates credits, and not where it failed to judicially award them. Appellant presents a distinction without a difference. The trial court here awarded appellant custody credits, just not as many as he believes he was entitled. Whether it was a failure to properly calculate or to award, the trial court should first determine the number of custody credits to which appellant is entitled.
DISPOSITION
The appeal is dismissed. Appellant may file a motion before the trial court pursuant to Penal Code section 1237.1.