People v. Pope

Full title: THE PEOPLE, Plaintiff and Respondent, v. LEVI DRAKE POPE, Defendant and…

Court: California Court of Appeals, Third District, Glenn

Date published: Jun 28, 2007

No. C053257 (Cal. Ct. App. Jun. 28, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. LEVI DRAKE POPE, Defendant and Appellant. C053257 California Court of Appeal, Third District, Glenn June 28, 2007

NOT TO BE PUBLISHED

Sup.Ct.No. 05NCR03367

MORRISON, J.

Defendant Levi Drake Pope was an inmate in the Glenn County Jail when he got into a fight during a bible study class in which an officer was struck. He entered a negotiated guilty plea to a charge he committed battery upon a custodial officer (Pen. Code, § 243.1), in exchange for a two-year sentence to run concurrently with his sentence in Glenn County case No. 03NCR00894.

Defendant’s sole contention on appeal is that the trial court erred in calculating his presentence custody credits, thereby denying him an additional 158 days of credit. After receiving the People’s response on the merits, defendant concedes he is not entitled to a portion of the credit he sought on appeal, and asks us to take judicial notice of the documents from the clerk’s file in Glenn County case No. 03NCR00894.

Penal Code section 1237.1, states, “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.”

Nothing in the record indicates defendant made any request in the trial court for the correction of his custody credit calculation he is seeking here. “By its terms, section 1237.1 bars a defendant, like [the defendant here], from taking an appeal as to any such question unless he has first presented it to the superior court, as [he] apparently did not. By implication, and a fortiori, it allows, if not requires, the Court of Appeal to decline to address a question of this sort unless he has complied.” (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101; see People v. Clavel (2002) 103 Cal.App.4th 516, 517-519; People v. Fares (1993) 16 Cal.App.4th 954, 956-960.)

The appeal is dismissed.¹

1 Because we are dismissing the appeal, we decline to take judicial notice of the matters in defendant’s request. (Evid. Code, § 452, subd. (d).)

We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.