Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 01CR1345 & CRF03-87
BLEASE, Acting P. J.
While defendant Michael Sargent was serving state prison sentences for drug offenses committed in Yuba County, he was charged in Amador County with both possession of marijuana and a sharp instrument while confined in state prison plus a prior strike conviction and an enhancement for service of a prior prison term.
In June 2005, defendant pled guilty to the marijuana possession charge and admitted the prior strike conviction in exchange for a promised aggregate state prison sentence of nine years four months -- four years for the Amador offense, doubled to eight years because of the strike, plus resentencing of 16 months consecutive on the Yuba County sentence he was presently serving. The settlement also provided that the restitution fines (Pen. Code, §§ 1202.4, 1202.45) imposed for both the Amador and Yuba County cases would not exceed a total of $1,800.
In January 2006, defendant was sentenced as provided by the negotiated settlement to nine years four months, restitution fines of $1,800 were imposed, and the court ordered defendant be credited with 612 days of sentence custody, consisting of 408 actual days served plus 204 days for conduct credit.
On appeal, defendant contends (1) the abstract of judgment reflects “an incorrect or unclear amount of restitution fines,” and (2) that he is entitled to additional sentence credits. The People argue the appeal should be dismissed pursuant to Penal Code section 1237.1 because defendant has failed to file a motion in the trial court for correction of the alleged credits and for clarification of the abstract of judgment. We shall dismiss the appeal.
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.”
As a general rule, “[i]f there are no other issues, the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal.” (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, fn. omitted.) However, where an appeal contains issues other than a challenge to the trial court’s custody credit calculation, the calculation is properly raised on appeal. (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12; People v. Jones (2000) 82 Cal.App.4th 485, 493.)
Relying on Florez and Jones, defendant argues the custody credit calculation is appropriately raised in this appeal because he has raised the additional issue regarding the purported lack of clarity of the abstract of judgment relating to the restitution fines. The argument is not persuasive.
The additional issues raised in Florez and Jones are substantive issues, and not, as here, an issue which at best could be only described as a clerical error, and which in fact is not error at all. The additional issue in Florez was whether a violation of Penal Code section 246 when committed for the benefit of a street gang qualifies as a violent felony (People v. Florez, supra, 132 Cal.App.4th at p. 317; and the additional issues in Jones were sufficiency of the evidence of attempted robbery and imposition of both firearm and deadly weapon enhancements (People v. Jones, supra, 82 Cal.App.4th at pp. 489, 492).
Defendant claims that the instant abstract of judgment is incorrect or unclear because it fails to show that the $1,800 restitution fines are for both the Amador and Yuba County cases, thereby subjecting him to the possibility that prison officials will require him to pay the restitution fines out of both Amador and Yuba Counties. Defendant’s fear is wholly unfounded. Pursuant to Penal Code section 1203.01, the trial court is required to forward to the Department of Corrections and Rehabilitation “the transcript of the proceedings at the time of the defendant’s guilty plea . . . and the transcript of the proceedings at the time of sentencing . . . .” These proceedings set forth clearly that the $1,800 restitution fines, imposed pursuant to Penal Code sections 1202.4 and 1202.45, are for both the present Amador County case and the resentencing on the Yuba County case.
Since defendant has failed to raise any substantive issue along with his challenge to the trial court’s calculation of the presentence custody credits, we dismiss the appeal.
DISPOSITION
The appeal is dismissed without prejudice to defendant’s filing in the trial court a motion for correction of his presentence custody calculations.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.