Filed 8/17/17 P. v. Haywood CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
PHARAOH HAYWOOD,
Defendant and Appellant.
| C082964
(Super. Ct. No. 12F00833)
|
While serving an 11-year sentence, defendant Pharaoh Haywood submitted a filing captioned, “Ex-Parte Motion For Amended Abstract of Judgment To Include Conduct Credits Pursuant To California Penal Code section 2900.5 and 4019.” In it, he requested an additional 366 days of custody credit (183 actual, 183 conduct).[1]/[2]
Defendant reasoned that he had been arrested on January 1, 2011, and posted bail a week later on January 8. He was rearrested a year later, on February 10, 2012, and remained in custody until he was sentenced on August 31, 2012. In total he had served 204 days in custody. Subtracting the 42 days of credit already awarded (21 actual, 21 conduct), he concluded he was entitled to the balance of 366 days of credits (183 actual, 183 conduct).
The trial court denied defendant’s request. The court explained that defendant had been sentenced on three counts on May 11, 2012, (the jury had deadlocked on two remaining counts). His accrued presentence custody was then applied to that sentence. When he was retried and sentenced on the two remaining counts (on August 31, 2012), the 21 accrued days (from August 10th to August 31st) attributable to those counts were applied to his sentence. All the remaining time between the original May 11, 2012, sentencing and August 10, 2012, was attributable to his May 11, 2012, sentence and thus did not result in presentence credits. Accordingly, all presentence custody credits that defendant was entitled to had already been applied.
Defendant timely appealed from the court’s ruling.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) The trial court’s calculation of conduct credits was correct. In fact, defendant actually received one extra day of credit.
Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
[1] Defendant asked this court to take judicial notice of portions of the record in case No. C071389. We treated that request as a request to incorporate that record by reference and granted that request.
[2] Though this was several years into his sentence, the trial court still retained jurisdiction to correct an error in the award of credits. (See People v. Fares (1993) 16 Cal.App.4th 954, 958-960 [“There is no time limitation upon the right to make the motion to correct the sentence. . . . [¶] . . . [¶] We therefore urge counsel presented with apparent error in the calculation of presentence custody credits to attempt correction in the trial court before elevating the issue to the stature of formal appeal. If the dispute cannot be resolved by motion in the superior court, appeal is always available”].)
