THE PEOPLE v. ANAYA

Filed 1/7/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE COURT:

It is ordered that the opinion filed herein on December 6, 2007, and modified and certified for publication on December 28, 2007, be further modified as follows:

1. On page 1, line 3, the word "Count" is changed to "County."

2. On page 1, the first line of the second paragraph, the sentence is changed to begin: "Anaya was charged in a second amended complaint with 47 counts of theft from an elder or dependent adult ."

3. On page 2, line 3 of the third paragraph, the words "a fixed determinate term" are changed to "an aggregate determinate term" so that the line reads: "count 35 and sentenced her to an aggregate determinate term of five years four months in the "

4. On page 2, line 4 of the third paragraph, after the sentence ending "Department of Corrections and Rehabilitation," add as footnote 1 the following footnote:

Count 27 charged a violation of Penal Code section 368, subdivision (d) as a misdemeanor. The transcript of the sentencing proceedings show that the trial judge imposed a sentence of one year in the county jail for this offense and ordered that it run concurrent with the state prison commitment. Neither the court minutes nor the abstract of judgment reflect this. We will direct the abstract be amended.

5. On page 4, at the end of the third full paragraph, after the sentence ending "County at any time," add as footnote 4 the following footnote:

The lynchpin for the receipt of custody credits is that one be "in custody." Citing People v. Reinertson (1986) 178 Cal.App.3d 320, 326, Anaya urges in her petition for rehearing that we have too narrowly defined the term. Though the term "in custody" has never been precisely defined, it is evident that Anaya was not "in custody" for the purpose of receiving time credit. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922; see People v. Richter (2005) 128 Cal.App.4th 575, 579-580 [time spent in work release program in lieu of confinement does not entitle the participant to custody credit].)

6. On page 5, the last paragraph is changed to read: "We direct the trial court to amend the abstract of judgment both to eliminate 434 days of presentence custody credits and to show the sentence of one year in county jail on count 27. In all other respects, the judgment is affirmed."

Respondent's petition for rehearing is denied.

There is no change in judgment.

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