Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62058709
ROBIE, J.
Defendant Cheryl Lynn Thrasher pled no contest to seven theft-related charges (two counts of burglary, three counts of forgery of a check, and two counts of identity theft) in exchange for dismissal of other counts and an aggregate prison sentence of eight years eight months.
On appeal, defendant makes two contentions of error, both of which the People concede.
First, at sentencing, the trial court pronounced a prison sentence of 16 months on count twenty-two, identity theft. The abstract of judgment, however, incorrectly indicates a sentence of 16 years for that offense. The parties are correct: the abstract must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Pen. Code, § 1207.) An abstract of judgment is not the judgment of conviction and cannot add to or modify the judgment it purports to summarize. (Mesa,at p. 471.) Rather, the oral pronouncement of judgment controls over the abstract of judgment. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) Thus, if a minute order or abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell, supra, 26 Cal.4th at p. 185; Mesa,at p. 471.)
Second, defendant contends the trial court erred in calculating her presentence custody credits. The People concede, and we agree.
A challenge to an award of presentence conduct credit may be raised at any time. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.) Penal Code section 1237.1 provides that a request for a correction should be first presented to the trial court, but when other issues are litigated on appeal, as in this case, Penal Code section 1237.1 has been interpreted “not [to] require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal.” (Acosta, at p. 427.)
“[Penal Code] [s]ection 4019 governs the calculation of presentence custody credits. A convicted felon is eligible for a one-day credit for performing work and another one-day credit for complying with regulations for every six-day period during which he or she is confined in or committed to a county jail prior to sentencing. A minimum commitment of six days is required to earn good/work credits. If the six-day commitment minimum is met, for every four days spent in actual custody, a term of six days is deemed served.” (People v. Culp (2002) 100 Cal.App.4th 1278, 1282-1283, fns. omitted.)
“The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.” (People v. Culp, supra, 100 Cal.App.4th at p. 1283.) “[A] defendant is entitled to have time spent in noncontinuous custody aggregated for the purpose of calculating good/work credits pursuant to [Penal Code] section 4019.” (Ibid.) “In short, when it comes to calculating good/work credits pursuant to [Penal Code] section 4019, time is cumulative.” (Culp, at p. 1284, italics omitted.)
Here, the trial court awarded defendant 143 days of actual custody, plus 70 days of conduct credit, for a total of 213 days of presentence credit.
However, the parties agree that the trial court erred in failing to include time served by defendant between February 28 to March 1, 2006, and again between March 21 and April 28, 2006. As a result, she should have been awarded 184 days of actual custody, plus 92 days of conduct credit, for a total of 276 total days of presentence credit.
DISPOSITION
The judgment is modified to give defendant credit for time served as follows: 184 actual days, plus 92 days of conduct credit, for a total of 276 days of credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification and to show that the sentence imposed for identity theft on count twenty-two was 16 months, rather than 16 years. The court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., SIMS, J.