Filed 4/11/17 P. v. Aichlmayr 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Trinity)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

DALE SCOTT AICHLMAYR,

Defendant and Appellant.
C079685

(Super. Ct. No. 13F078)





Defendant Dale Scott Aichlmayr pleaded no contest to four misdemeanors and a felony. The trial court suspended imposition of sentence, placed defendant on formal probation, and ordered him to time-served in the county jail (326 days). After defendant repeatedly violated his probation, the trial court imposed sentence and ordered defendant to serve an aggregate term of two years in state prison. The court awarded defendant 274 days of custody credit.
Defendant subsequently filed several motions with the trial court, asking the court to correct the award of custody credits. The court corrected the abstract of judgment multiple times. On this appeal, however, defendant contends the trial court still has not awarded him the correct amount of custody credits. Specifically, he contends he is entitled to an additional 326 days of custody credit for the time he spent in custody prior to his original grant of probation.
Defendant also contends the March 25, 2016, minute order requires correction.
We conclude defendant is not entitled to any further custody credits but agree the March 25, 2016, minute order needs to be corrected and the abstract of judgment amended. We affirm the orders of the court as corrected.
FACTS AND PROCEEDINGS
Defendant pleaded no contest to misdemeanor child molestation (Pen. Code, § 647.6--count 1; unless otherwise set forth statutory references that follow are to the Penal Code), two counts of misdemeanor criminal threats (§ 422--counts 2 and 3), felony battery on a peace officer (§ 243, subd. (c)(2)--count 5), and misdemeanor vandalism (§ 594--count 7).
On October 15, 2013, the trial court suspended imposition of sentence and placed defendant on formal probation for three years. The court further ordered defendant to serve 326 days in county jail on counts 2, 3, and 7 but also gave defendant 326 days of credit for time served (163 actual and 163 conduct). The court specifically ruled defendant would serve no jail time on counts 1 and 5.
On February 25, 2014, defendant admitted violating his probation. The trial court reinstated probation.
On July 2, 2014, defendant admitted violating probation a second time. Again, the trial court reinstated his probation. This time, however, the court ordered defendant to serve 40 days in county jail, giving him 40 days of custody credit (20 actual and 20 conduct).
On October 17, 2014, defendant admitted violating probation a third time. The court reinstated probation but ordered him to serve 54 days in county jail, awarding him 54 days of custody credit (27 actual and 27 conduct).
On January 13, 2015, defendant was arrested on new criminal charges. On March 27, 2015, the trial court found those criminal charges, along with other conduct, resulted in defendant violating his probation a fourth time. Accordingly, the trial court revoked defendant’s probation and imposed sentence as follows: the midterm of two years in state prison on count 5 and a concurrent six-month term in county jail on count 1. The court further ordered defendant “serve an amount of time in custody equal to the amount of time served” on the remaining counts, as “reflected in the court’s--the original order of October 15, 2013.” The court also awarded defendant 274 days of custody credit (137 actual and 137 conduct).
On October 1, 2015, defendant filed an “ex parte motion for correction of presentence custody credits” with the trial court. Defendant sought an additional 94 days of custody credit (47 actual and 47 conduct) for those days defendant spent in custody following his second and third probation violations, for a total of 368 days of custody credit. The trial court granted defendant’s motion and an amended abstract of judgment issued (the October 23 abstract). The October 23 abstract reflected total custody credits of 368 days.
On December 3, 2015, defendant filed an “ex parte motion for correction of clerical error in the [amended] abstract of judgment and clerk’s minute order.” In that motion, defendant noted the trial court sentenced him to six months in county jail only on count 1. The October 23 abstract, however, indicated defendant was ordered to serve six months on counts 1, 2, 3, and 7. Again, the trial court granted his motion and directed the clerk to prepare a minute order reflecting the correction and another amended abstract of judgment.
Section 8 of the second amended abstract of judgment, filed December 3, 2015 (the December 3 abstract), reflects the following: “Court’s sentence as to Counts 2, 3, 1[, a]nd 7 are to run concurrently to each other.” Section 10 says: “This sentence is to run concurrent with (specify): Misdemeanor counts 1, 2, 3, and 7 of 6-months each.” The December 3 abstract also reflected a reduction in defendant’s custody credits from 368 days to 326 days.
On January 7, 2016, defendant sent a letter to the trial court indicating the December 3 abstract still did not reflect the trial court’s order with regard to his misdemeanor convictions. In response to his letter, on January 29, 2016, the court issued a minute order directing the trial court clerk to “exclude the information reflected in item #10 based upon the fact that a misdemeanor conviction is not reported on an Abstract of Judgment-Prison Commitment form.”
On February 3, 2016, the trial court clerk filed its third amended abstract of judgment (the February 3 abstract) with the language in section 10 eliminated. The language in section 8, however, remained. The February 3 abstract also reflected only 326 days of custody credit.
On February 5, 2016, defendant filed another “ex parte motion for correction of presentence custody credits” with the trial court. Defendant asked the trial court to apply the 326 days of custody credit first awarded to him on October 15, 2013, to his two-year prison term. Defendant also asked for an additional 29 days of custody credit for the time he spent in custody following his first probation violation in February 2014.
After receiving defendant’s motion, the trial court asked the probation department to “recommend to the court whether credits need further modification.” On February 29, 2016, the probation department reported back finding: (1) there was no record of defendant in custody following his first probation violation, and (2) the 326 days of custody credit first awarded to defendant in October 2013 were already “applied to Counts 2, 3, and 7.”
The People opposed defendant’s motion but asked that the October 23, 2015, minute order be amended “to correctly reflect the proper credits for the defendant’s second and third violations of probation 40 (20 actual) + 54 (27 actual) = 94 days total.”
The court amended “its prior order awarding credits” to “award credits for count 5 of 94 actual days plus 94 conduct credits, a total of 188 days.” The court found the request for additional days as moot but nevertheless denied defendant’s request for the additional 326 days.
On March 30, 2016, the trial court issued its fourth amended abstract of judgment, which is now the operative abstract of judgment (the operative abstract). The operative abstract reflects an award of 326 days of custody credit breaking it down as 94 actual days and 94 conduct days.
DISCUSSION
A. 326 Additional Days of Custody Credit
Defendant contends the trial court erred in refusing to “apply” to the sentence imposed in January 2016, the 326 days of custody credit originally awarded to him in October 2013. We disagree.
“The purpose of section 2900.5 is to equalize the total time in custody between those who suffered presentence custody on unproven charges and those who do not. [Citation.]” (People v. Kunath (2012) 203 Cal.App.4th 906, 910.)
In October 2013, when defendant was awarded probation, he also was ordered to spend 326 days in county jail on counts 2, 3, and 7, but was given credit for time-served. The trial court specifically ordered that defendant would not serve any jail time on counts 1 and 5. As a result, defendant spent no additional time in custody on counts 2, 3, and 7, and no time on either count 1 or 5.
Defendant thus received the benefit of section 2900.5 with regard to his time in custody prior to the award of probation. He cites no authority to support his claim that he is entitled to receive that benefit a second time when he was sentenced more than two years later on counts 1 and 5.
Relying on People v. Kunath, supra, 203 Cal.App.4th 910, defendant argues he is entitled to those 326 days of credit on each charge because he was ordered to serve concurrent terms and thus the credits must be applied to each charge. Defendant misunderstands the law. Presentence custody credits must apply to each and every charge only when a defendant is “simultaneously sentenced on all charges to concurrent terms . . . .” (Ibid.)
Here, defendant was not simultaneously sentenced on all charges to concurrent terms. In October 2013, he was ordered to serve concurrent terms in county jail on counts 2, 3, and 7. He was not sentenced on counts 1 and 5, however, until March 2015. Therefore, defendant is not entitled to have the 326 days of credit awarded to him in October 2013, and from which he has already benefited, applied to the sentence imposed in March 2015.
B. The March 29 Minute Order and March 30 Abstract
Defendant also contends the March 25, 2016, minute order is in error. The People fail to respond to this contention but we agree the minute order needs to be corrected. We also conclude the operative abstract of judgment needs to be corrected.
The March 25, 2016, minute order indicates defendant was entitled to 188 days of custody credit when he was sentenced on counts 1 and 5 in January 2016 (94 actual and 94 conduct). In October 2015, however, the court ruled defendant was entitled to a total of 368 days of custody credit: 188 days for the time in custody on his second and third probation violations, in addition to the 274 days he was awarded at sentencing. That ruling was reflected in the October 23 abstract.
Without explanation, the December 3 abstract reduced that number to 326 days of custody credit. That reduced number continued to appear in the subsequent amended abstracts of judgment. The operative abstract not only reflects the inexplicably reduced total number of days but indicates that number was arrived at by adding 94 actual days to 94 conduct. This needs to be corrected.
Based on our review of the record, defendant is entitled to a total of 368 days custody credit: 274 days for his time in custody on the fourth violation of probation, 40 days for his time in custody on the second violation of probation, and 54 days for his time in custody on the third violation of probation.
We thus direct the clerk of the trial court to correct the March 25, 2016, minute order to reflect an award of 368 days of custody credit (184 actual and 184 conduct). The clerk is further directed to prepare an amended abstract of judgment reflecting the same.
DISPOSITION
The judgment is affirmed. The clerk of the trial court is directed to prepare an amended minute order and abstract of judgment consistent with this opinion. The clerk is further directed to forward a certified copy of the amended abstract of judgment to the relevant governing body.



HULL , Acting P. J.



We concur:



MURRAY , J.



HOCH , J.