Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, No. KA079633. Jack P. Hunt, Judge
Gary C. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, A.P.J.
Christopher Valles was sentenced to six years state prison after pleading no contest to lewd conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)) and two misdemeanor counts of child molestation (§ 647.6, subd. (a)(1)). The trial court awarded 39 days presentence credit consisting of 34 days actual custody and 5 days conduct credit.
All statutory references are to the Penal Code unless otherwise stated.
Section 2933.1, subdivision (c) imposes a 15 percent worktime/conduct limit for defendants convicted of any offense listed under section 667.5, subdivision (c). Appellant was convicted of violating section 288, subdivision (a) which is one of the enumerated offenses under section 667.5, subdivision (c)(6).
Appellant appeals from the judgment on the ground that the trial court miscalculated his presentence credits. Appellant claims that he was arrested June 20, 2007, and remained in custody until the July 31, 2007 sentencing hearing, thus entitling him to 42 days custody credit.
The Attorney General argues that the appeal should be dismissed because appellant did not file a motion with the trial court to correct the alleged error. Although section 1237.1 requires a formal motion for correction of a presentence custody credit calculation, an informal letter to the trial court suffices where, as here, the trial court rules on it. (People v. Clavel (2002) 103 Cal.App.4th 516, 519, fn. 4.)
The trial court, in denying appellant's letter request, found: "The felony complaint was filed June 26, 2007, and an arrest warrant was issued for the defendant on June 27, 2007. The defendant was brought to court on July 2, 2007. On July 31, 2007, the defendant entered pleas and was sentenced. A review of the court file would indicate that the custody credits [i.e., 34 days] are correct."
Appellant argues that he is entitled to 42 days custody credit because a post-sentence probation report states that he was interviewed and "arrested" by the investigating officer on June 20, 2007, and "later transported to Twin Towers." Appellant asserts that the word "later" infers that he was continuously in custody from June 20, 2007 until sentencing.
As we shall explain, "later" can have different meanings, especially in the context of this post-sentence probation report. The more reasonable inference is that appellant was interviewed on June 20, 2007, transported to the Baldwin Park Police Station "for booking approval," and released the same day. The record shows that a felony arrest warrant issued June 27, 2007, and that appellant was arrested and booked at Twin Towers (Los Angeles County Jail) the next day. An arrest warrant would not have been required if appellant was already in custody.
We take judicial notice of a September 28, 2007 Los Angeles County Sheriff's Department Inmate Information sheet which was forwarded by the superior court clerk in processing appellant's notice of appeal. (Evid. Code, §§ 452, subd. (d); 459.) The information sheet states that the appellant was arrested and booked on June 28, 2007.
At the sentencing hearing, appellant was advised that he had 34 days custody credit. Appellant asked the trial court to repeat the number and did not object, supporting the inference that the calculation was correct. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9.)
Post-Sentence Probation Report
The post-sentence probation report was prepared because appellant had waived preliminary hearing and requested that he be immediately sentenced. The court clerk was required to send a copy of a probation report to the Department of Corrections and Rehabilitation (§ 1203c) for appellant's intake and processing (Cal. Code Regs. Tit 15, §§ 3075-3075.1). Having no probation report, a post-sentence probation report was prepared several days later.
The post-sentence probation report provides a sketchy procedural history and has a few discrepancies. For example, page one of the report lists the arrest date as "08/03/2007." Read literally, it means appellant was "arrested" three days after he was sentenced and that he is entitled to no presentence custody credits. Appellant, on the other hand, seizes on the phrase "later transported to Twin Towers," on page five of the report to argue that his presentence custody credits started June 20, 2007.
Time travel in Einstein's Universe envisions the warp of time in which "later" can mean "before." But that is not our standard of review. If there is any uncertainty in the record, it must be resolved against appellant. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452.) " ' "[E]rror is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it . . . ." ' [Citation.]" (Ibid.)
The judgment is affirmed
We concur: COFFEE, J., PERREN, J.