Opinion
2d Crim. No. B233910
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA TRACY NINE, Defendant and Appellant.
Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief Deputy Public Defender, for Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert M. Snider, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Super. Ct. No. 2009043422)
(Ventura County)
Victoria Tracy Nine appeals from an April 20, 2011 order denying her post-judgment motion to modify the award of presentence credits in three cases and apply any excess presentence credits to the fines imposed in each case. (Pen. Code, § 2900.5, subd. (a)) The Attorney General agrees that appellant is entitled to monetary credit for each day of presentence credit exceeding the two year prison sentence appellant was ordered to serve. (Ibid.; see People v. McGarry (2002) 96 Cal.App.4th 644, 647-648.) We reverse and remand with directions.
All statutory references are to the Penal Code unless otherwise stated.
On March 14, 2011, the trial court sentenced appellant in three cases to concurrent two-year prison terms, awarded presentence custody credits, and imposed $1,000 restitution fines. (Case Nos. 2009043422, 2009044026, 2009022268.) Because the presentence custody credits exceeded the two year prison term, the prison sentence was deemed served and appellant was released from custody and ordered to report to parole.
In Case No. 2009043422 appellant was convicted by plea of felony driving under the influence of alcohol (DUI) with a prior DUI conviction. (Veh. Code, §§ 23550, subd. (a); 23152, subd. (a)) and awarded 780 days presentence credits.
In Case No. 2009044026 appellant was convicted by plea of felony petty theft with three priors (§ 666) and awarded 876 days presentence credits.
Case No. 200922268 is an October 16, 2009 conviction by plea to felony driving under the influence with a prior. (Veh. Code, §§ 23550; 23152, subd. (a).) The trial court suspended imposition of sentence and granted probation, which was revoked based on the two other cases. Appellant was awarded 912 days presentence credits
On April 20, 2011, appellant requested that the trial court modify the judgment to convert the excess presentence credits into monetary credit for payment of the fines. (§ 2900.5, subd. (a).) The trial court found that appellant had excess presentence credits but denied to modify the judgment. The court stated: "I don't have jurisdiction to do this. But if I did, I would grant [appellant's] request, because I think she's served the extra time, and I think it may help her if she doesn't have the financial stress to succeed on [parole]."
Appellant contends, and the Attorney General agrees, that the judgment should be reversed and remanded for recalculation of presentence credits and conversion of excess presentence credits to monetary credit. (§ 2900.5, subd. (a).) The failure to accurately award presentence custody credits is an unauthorized sentence and may be corrected at any time (In re Ricky H. (1981) 30 Cal.3d 176, 191; see also § 1170, subd. (d) and People v. Johnson (2004) 32 Cal.4th 260, 266 [trial court's authority to recall sentence within 120 days of date of commitment].)
We note that the abstract of judgment and the March 14, 2011 minute order erroneously state that $200 restitution fines were imposed and that a $90 court security fee (§ 1465.8), a $120 criminal assessment (Gov. Code § 70373), and a $2,021 fine (Veh. Code, § 23152, subd. (d)) were imposed. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
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Section 2900.5, subdivision (a) provides in pertinent part: "In all felony and misdemeanor convictions . . . when the defendant has been in custody, . . . all days of custody of the defendant . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence." (Italics added.)
The judgment is reversed with directions to modify the award of presentence credits nunc pro tunc and monetarily apply any excess credits, on a proportional basis, to the fines imposed in each case. (§ 2900.5, subd. (a); see People v. McGarry, supra, 96 Cal.App.4th at pp. 647-648.) The trial court is further directed: (1) to amend the abstract of judgment to reflect that $1,000 restitution fines were imposed in each case; (2) to amend the abstract of judgment and March 14, 2011 minute order to accurately reflect the fines imposed at the oral pronouncement of judgment; and (3) to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Charles W. Campbell, Judge
Superior Court County of Ventura
Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief Deputy Public Defender, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert M. Snider, Deputy Attorneys General, for Respondent.