P. v. Logiudice

Filed 10/20/06 P. v. Logiudice CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

Defendant Joseph Logiudice IV pled guilty to receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted serving two prior prison terms (Pen. Code, § 667.5, subd. (b)) and four prior strike convictions. Pursuant to the plea agreement, the prior convictions were struck. The trial court suspended a five-year sentence and placed defendant on five years formal probation with credit for time served.

Defendant subsequently admitted to violating probation, and the trial court imposed execution of the original sentence.

On appeal, defendant contends there are several errors in the abstract of judgment. The Attorney General concedes error and joins defendant. We accept the concession and remand with orders to correct the abstract of judgment.

DISCUSSION

We dispense with recitation of the underlying facts as they are unnecessary to the resolution of this appeal.

Defendant and the Attorney General correctly identify four errors in the abstract of judgment. The abstract identifies the year of the offense as 2001, but defendant committed the offense in 2004. The abstract also states defendant is sentenced under the two strikes law. While defendant admitted to four prior strikes, these were stricken in the interest of justice.

The trial court ordered a $148 booking fee, but the fee is not listed in the abstract. “All fines and fees must be set forth in the abstract of judgment. [Citations.]” (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

The abstract credits defendant with 250 days custody credit and 125 days conduct credit. Defendant was incarcerated from May 30, 2004, to December 15, 2004, for a total of 200 days. He was incarcerated from October 4, 2005, to October 19, 2005, a 16-day total. Finally, defendant was incarcerated from December 15, 2005, to his sentencing on January 18, 2006, which equals 35 days. This adds up to 251 days instead of the 250 days listed in the abstract of judgment. The abstract should so reflect.

Defendant’s good time credits are calculated by dividing the actual number of presentence custody days by four, discarding the remainder, and multiplying that product by two. (In re Marquez (2003) 30 Cal.4th 14, 26; Pen. Code, § 4019, subds. (b), (d), (f).) Two hundred and fifty-one divided by four is 62.75. After rounding down to 62 and multiplying by two, the conduct credit is 124 days, not 125 days. The abstract should so reflect. Correcting this error does not affect defendant’s sentence since defendant’s 251 days custody credit and 124 days conduct credit add up to the 375 days of credit listed in the abstract.

Under our power to order the correction of a clerical error in the record at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), we shall direct the trial court on remand to make the necessary corrections to the errors identified in this opinion.

DISPOSITION

The judgment is affirmed. The trial court is ordered to correct the abstract of judgment, as discussed in the opinion, and forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

SIMS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.