P. v. Topete
Filed 5/23/08 P. v. Topete CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL TOPETE, Defendant and Appellant. | A117822 (Alameda County Super. Ct. No. CH41391) |
Defendant appeals from a judgment of conviction, alleging that the trial court erred in denying him any presentence conduct credits. We agree and order the abstract of judgment corrected accordingly.
Background
Defendant was convicted by jury trial of nine counts of aggravated sexual assault of a child. (Pen. Code, 269.)[1] The charges arose from defendants conduct in molesting, raping and sodomizing his daughter, starting when she was nine years of age and continuing until she was sixteen.[2] The trial court sentenced defendant to nine consecutive terms of 15 years to life in state prison. Over defendants express objection, the trial court refused to award any presentence conduct credits, citing to section 2933.1 and Jack Ryans most recent felony sentencing script. Defendant specifically argued below, as he does on appeal, that he was entitled to 15 percent presentence custody credits (limited to 15 percent pursuant to section 2933.1, as violations of section 269 are violent felonies).
Respondent asserts that defendants appeal should be dismissed as he failed to comply with section 1237.1, in that he did not make a motion for correction of the record in the trial court, before raising the issue on appeal. Section 1237.1 provides that: 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. (Italics added.) Here, defendant did present the claim to the trial court at the time of sentencing and thus he was not required to make a motion for correction of the record.
Respondent does agree that the trial court erred in denying defendant any presentence conduct credits, and that he should have been awarded such credits under section 2933.1, which limits such credits to 15 percent for all violent felonies, as defined in section 667.5, subdivision (c). Violations of section 269 are violent felonies under this definition. Defendant and respondent thus agree that the trial court should have awarded 67 days of conduct credit (15 percent of the total 452 days of presentence actual custody credit), for a total of 519 days of presentence credits. We agree.
Disposition
The judgment is reversed insofar as it failed to reflect any presentence conduct credits. The abstract of judgment is ordered corrected to reflect an award of 67 days of presentence conduct credits pursuant to section 2933.1, for a total of 519 days of presentence credits. The amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects the judgment is affirmed.
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Sepulveda, J.
We concur:
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Ruvolo, P.J.
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Reardon, J.
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[1]All further section references are to the Penal Code.
[2]Since the sole issue on appeal does not relate to the underlying facts, we will recite only those facts necessary to frame the issues presented. (See People v. Burns (2005) 128 Cal.App.4th 794, 799.)
