In re Davenport

Filed 5/10/07 In re Davenport CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE COURT:^*

Petitioner David Davenport is presently pursuing an appeal in case number A115394. The Attorney Generals brief in that appeal concedes that petitioner is entitled to an additional 44 actual custody credits, for a total of 168 days of credits (consisting of 112 actual credits and 56 good time credits). Asserting that petitioners appeal would not be resolved prior to his release date as revised to include the additional days of credits, petitioners counsel filed the petition for writ of habeas corpus herein, asserting, in part, that credits were incorrectly calculated.

The Attorney Generals letter brief in response to petitioners habeas petition adheres to the concession concerning credits made in the respondents brief on appeal. Furthermore, the Attorney General voices no opposition to the granting of habeas relief on petitioners claim regarding credits. All parties have waived issuance of an order to show cause and oral argument and stipulate to the immediate issuance of the remittitur as to this issue only.^[1]

Therefore, the petition for writ of habeas corpus is granted insofar as petitioner claims that credits were not correctly calculated. A writ of habeas corpus shall issue commanding the superior court to forthwith amend the abstract of judgment to reflect appropriate credits consistent with this opinion, and immediately forward a certified copy of the amended abstract of judgment to the Department of Corrections. Petitioners counsel calculates petitioners new release date as falling on May 12, 2007, and while we express no opinion on the validity of that calculation, the superior court shall comply with the writ of habeas corpus with all due haste to permit a prompt determination of petitioners release date.

This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).) Pursuant to the parties stipulation, the remittitur in this proceeding shall issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).) The clerk of Division Five is instructed to file a copy of this opinion in case numbers A115394 and A117676.

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^* Before Simons, Acting P.J., Gemello, J. and Needham, J.

^[1] As previously explained in this courts order of April 27, 2007, the remaining claims asserted in the habeas petition herein have been deferred pending consideration of the related appeal in case number A115394. Furthermore, in light of the granting of habeas relief as to the credits-related issue, the remaining deferred claims are deemed severed from the credits-related issue and have been assigned a new case number (A117676). Briefing on the deferred claims shall proceed in accordance with this courts April 27, 2007 order, and the parties briefs concerning those claims shall bear case number A117676.