Filed 6/29/17 P. v. Wagenman CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE WAGENMAN,
Defendant and Appellant.

A148744

(Lake County
Super. Ct. No. CR938878)


MEMORANDUM OPINION
BY THE COURT:
Jesse Wagenman asks this court to order the trial court to award him 54 days of presentence conduct credits. He says a letter from his counsel to the trial court pointing out the alleged error satisfied the statutory requirement that he make a written motion for correction before seeking appellate review of any error in the calculation of presentence credits. The trial court did not respond to his letter.
As of January 1, 2016, Penal Code 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, 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.” (§ 1237.1 (Stats.2015, ch. 194), italics added.)
Before the Legislature’s enactment of section 1237.1 in 1995, People v. Fares (1993) 16 Cal.App.4th 954, 958 established that attempts to correct errors in the calculation of credits should be made by noticed motions in the trial court before resorting to appeals. When the Legislature amended section 1237.1 to clarify (in apparent response to People v. Clavel (2002) 103 Cal.App.4th 516, which required formal motions) that motions for correction made “informally in writing” are sufficient to preserve the issue for appeal, it did not disturb Fares’s requirement that the defendant serve notice of the motion. Nor would it make sense to encourage ex parte motions in this situation. Unless the People are served with a request to correct presentence credits, they cannot respond, if appropriate, with any applicable information or argument, and this court may be left to review the trial court’s determination (or, as here, lack of one) on an inadequate record. This is a case in point. The Attorney General argues Wagenman waived his right to all future credits at an earlier probation violation hearing. Maybe, but, as anticipated in Fares, whether Wagenman did so “depends upon factual findings better determined by the lower tribunal.” (People v. Fares, supra, at p. 959.)
Here, the record gives no indication that Wagenman’s counsel served his request for conduct credits on the People. We therefore dismiss the appeal without prejudice to Wagenman’s right to seek relief in the trial court by a properly served request in accordance with section 1237.1.