Error and/or relief
On resentencing, the court failed to update the credit for time served. The abstract of judgment contains errors that must be corrected.
First Holding:
A trial court’s erroneous failure to award presentence custody credits is not waived by failure to object at trial because “the calculation of credits is not discretionary and there are no ‘choices. An incorrect award of presentence custody credits is an unauthorized sentence which may be corrected at any time.
Authority:
People v. Aguirre (1997) 56 Cal.App.4th 1135, 1138
People v. Gisbert (2012) 205 Cal.App.4th 277, 282
Second Holding:
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.
Section 1237.1, however, does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal. There may be situations, like this case, where an appellate court may simply resolve the custody credits issue in the interests of economy.
Authority:
PEN 1237.1
People v. Acosta (1996) 48 Cal.App.4th 411, 420
People v. Mendez (1999) 19 Cal.4th 1084, 1101
People v. Jones (2000) 82 Cal.App.4th 485, 493
People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn 3
Third Holding:
The abstract of judgment reflects that the defendant was convicted of first degree burglary, but in fact he was convicted of second degree burglary. Further, the abstract of judgment reflects the sentence for count 5 as one-third the middle term, instead of the actual two years middle term. The abstract must be corrected.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. An appellate court has the authority to correct clerical errors.
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [appellate court may correct clerical errors on its own motion or upon application of the parties]
People v. Zackery (2007) 147 Cal.App.4th 380, 394 [same]
People v. Mesa (1975) 14 Cal.3d 466, 471