Filed 1/18/18 P. v. Smith CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFERY DAVID SMITH,

Defendant and Appellant.

F075120

(Super. Ct. No. F15905087)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Dennis A. Peterson, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Jeffery David Smith pled no contest to one count of violating Penal Code section 245, subdivision (a)(4), assault by means likely to produce great bodily injury. In this appeal, Smith contends the trial court erred in calculating his presentence custody credits. We agree Smith is entitled to an additional nine days of presentence credit.
FACTUAL AND PROCEDURAL SUMMARY
We summarize only those facts relevant to the issue in this appeal. According to the probation report, Smith was arrested on August 14, 2015. He was granted pretrial release on August 19, 2015. He was awarded six days of actual custody credit for this time period.
Smith failed to appear at a scheduled October 26, 2015 hearing. He was taken into custody on November 17, 2015. On December 7, 2015, defense counsel declared doubt as to Smith’s competency to stand trial. The trial court suspended criminal proceedings and ordered Smith evaluated. On January 11, 2016, after reviewing the evaluation reports, the trial court found Smith was not competent.
Smith remained in custody from November 17, 2015, until April 19, 2016, and was awarded 155 days of actual custody credit for this period of time. He was released for treatment on April 20, 2016, and remained in treatment through June 10, 2016. He was awarded 52 treatment days for this period of time.
After being released from treatment, Smith apparently was returned to local custody. The probation report reflects that he was returned to jail on June 11, 2016. The trial court reinstated criminal proceedings on June 24, 2016.
On July 25, 2016, Smith entered into a plea agreement. In exchange for a no contest plea to the count 1 offense of assault by means likely to produce great bodily injury, the count 2 offense of second degree robbery would be dismissed. In addition, the People agreed to a “mitigated lid” for the sentence, which was a two-year term.
The probation report prepared for sentencing calculated credit from June 11, 2016, through August 24, 2016, the date the probation report was filed, as 75 actual days. The probation report calculated total credits as 236 actual days, 236 conduct days, and 52 treatment days, for a total of 524 days.
Smith was in custody from June 11, 2016, to the August 29, 2016, sentencing hearing, when he was released on probation. At sentencing, the trial court awarded 236 days actual custody credit, 236 days of conduct credit, and 52 treatment days, for a total of 524 days. The trial court did not add any days of credit for the period from August 24, 2016, when the probation report was prepared, to the date of the August 29, 2016, sentencing hearing and Smith’s release. No challenge to the total days of credit was asserted at sentencing.
On December 6, 2016, a probation violation hearing was held; Smith admitted being in violation of the terms and conditions of probation. Probation was revoked, but reinstated on the same terms and conditions as previously ordered.
Smith lodged a notice of appeal and requested a certificate of probable cause. The certificate of probable cause was denied.
DISCUSSION
Smith contends the trial court erred in its calculation and award of custody credits. In his reply brief, Smith asserts he is entitled to another 10 days of credit, five days for actual custody and five days of conduct credit, for a total of 534 days of credit. The People contend Smith’s claim is not reviewable on appeal; alternatively, the People maintain Smith is entitled to 533 total days of credit.
I. Claim is Cognizable on Appeal
The People maintain Smith’s claim is not cognizable on appeal pursuant to section 1237.1. As of January 1, 2016, section 1237.1 was amended to provide:
“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, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant’s request for correction.” (Stats. 2015, ch. 194, § 2.)
Smith did not raise any challenge to the award of presentence credits at sentencing. Appellate counsel, however, requested in writing that the trial court correct the award of presentence credits; the trial court denied the request without explanation. The Attorney General quotes to an older version of section 1237.1, which does not include the 2015 amendment, and asserts a formal motion seeking a correction to presentence credits was required to be filed pursuant to People v. Clavel (2002) 103 Cal.App.4th 516, 518, not a Fares letter. This argument is no longer supported by the law.
Moreover, the failure to award such credits results in an unauthorized sentence. (People v. Duran (1998) 67 Cal.App.4th 267, 270.) A defendant is entitled to credit against his or her sentence for all days spent in custody while awaiting trial and sentencing, up to and including the date when the sentence is imposed. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Furthermore, this court has held that calculation of presentence credits is not discretionary and not subject to waiver or forfeiture. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.)
Consequently, Smith’s claim is cognizable on appeal.
II. Calculation of Presentence Credit
We note that appellate counsel’s Fares letter requested an award of 712 days of presentence credit, the amount requested in appellant’s opening brief. In his reply brief, Smith concedes the 712 figure is inaccurate and requests an award of 534 total days.
The probation report awarded 236 days of actual custody, 236 days of conduct credit, and 52 treatment days. As the People concede, the probation report was submitted five days before the sentencing hearing and the trial court failed to update the credit calculations at sentencing. Custody credit is calculated by including all days in custody, including the day of sentencing and partial custody. (People v. Downey (2000) 82 Cal.App.4th 899, 920.)
Smith calculates the presentence credit should be 241 days actual credit, plus 52 treatment days, plus 241 conduct days, for a total of 534 days. The People maintain Smith should have been awarded 533 total days of credit, one day difference from Smith’s current position. The People calculate presentence credit as 241 days of actual custody, 52 treatment days, and 240 days of conduct credit.
The parties agree that an additional five days of actual custody credit should have been awarded and that at least four additional days of conduct credit should have been awarded. The difference in position between Smith and the People is in the award of one conduct day. An appellate court may resolve presentence credit calculation issues if doing so will serve the interests of judicial economy. (People v. Jones (2000) 82 Cal.App.4th 485, 493.)
Both Smith and the People cite section 4019 as the statutory basis for their calculation. There is nothing in the record, or argued on appeal, that would suggest Smith is disqualified from the full amount of conduct credit allowed under section 4019. Section 4019, subdivision (f), provides:
“(f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.”
Section 4019, subdivision (f), provides that a defendant is entitled to four days of credit for every two days served in actual custody. Smith spent 241 days in actual custody, which is an uneven number. He is entitled to four days for every two days served in actual custody, which calculates to 240 days of conduct credit, not 241. No credit is awarded for less than the statutory increment; no “‘“rounding up”’” is permitted. (In re Marquez (2003) 30 Cal.4th 14, 25–26 [addressing prior version of section 4019].)
Smith is entitled to an additional five days of actual custody credit, plus an additional four days of conduct credit, for a total of nine additional days of presentence credit.
DISPOSITION
Smith is awarded a total of 533 days presentence credit, comprised of 241 actual days, 240 conduct days, and 52 treatment days. In all other respects, the judgment is affirmed.