P. v. Ognev





















Filed 4/25/13 P. v. Ognev CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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 8.1115.











IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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THE PEOPLE, Plaintiff and Respondent, v. GEORGIY M. OGNEV, Defendant and Appellant.

A134268 (San Francisco County Super. Ct. No. 215984)

Georgiy
M. Ognev appeals from a judgment upon a jury verdict finding him guilty of
misdemeanor simple assault (Pen. Code,
§ 240) and misdemeanor elder abuse
(Pen. Code, § 368). He contends
that the trial court erroneously calculated both his presentence custody and
conduct credits. We conclude that
defendant must first seek relief on the issue of credits in the trial court and
therefore dismiss the appeal.

Penal
Code section 1237.1 provides that “[n]o 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 href="http://www.fearnotlaw.com/">motion for correction of the record in
the trial court.”

As
the Attorney General points out, there is nothing in the record to reflect that
defendant raised the issue of credits in the trial court. Consequently, defendant may not raise the
issue on appeal. (Pen. Code,
§ 1237.5; People v. Clavel
(2002) 103 Cal.App.4th 516, 518–519.)
“Because the record on appeal contains neither a motion to amend the
abstract of judgment to correct the alleged miscalculation of presentence
custody credits, nor a trial court ruling on such a motion, the present appeal
must be dismissed.” (>Clavel, supra, at p. 519.)

Defendant’s
reliance on People v. Delgado (2012)
210 Cal.App.4th 761, 765 is misplaced.
There, the court held that Penal Code section 1237.1 did not require
dismissal of an appeal where the issue on appeal is not whether custody credits
were miscalculated, but under which version of Penal Code section 4019 the
credits should have been calculated. (>Id. at p. 764, 766.) “A determination of which version of a statute applies (which . . . may
require interpretation and application of principles of statutory construction
and constitutional law) is much different than a mere mathematical
calculation.” (Id. at p. 767.)

Here,
defendant’s claim on appeal is simply that his custody and conduct credits were
incorrectly calculated. Since he has not
sought relief on this issue in the trial court, we must dismiss the appeal.

>DISPOSITION

The
appeal is dismissed.













_________________________

Rivera,
J.





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Humes, J.