Filed 10/29/18 P. v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLIE LEE BROWN,
Defendant and Appellant.
|
F075411
(Super. Ct. No. MCR043902)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Charlie Lee Brown contends on appeal that the trial court should have awarded presentence and postsentence custody credits from his prior case. The People concede and we agree. We remand for modification of the abstract of judgment.
PROCEDURAL SUMMARY
On February 24, 2017, defendant pled guilty to five counts of forcible lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). The plea agreement called for defendant to receive a 50-year sentence (five 10-year terms) to run consecutively to a 12-year sentence he was already serving for his 2011 conviction of three counts of lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) in case No. MCR038615.
On March 24, 2017, the trial court sentenced defendant to the agreed-upon 62 years in prison. The court did not award custody credits, stating that the responsibility fell on the Department of Corrections and Rehabilitation.
On April 3, 2017, defendant filed a notice of appeal. The trial court granted a certificate of probable cause.
DISCUSSION
Defendant’s sole contention on appeal is that, in case No. MCR038615, the trial court should have awarded presentence custody credits, and also postsentence custody credits for time between his conviction in that case and his sentencing in the present case.
Both parties agree that because the trial court consolidated the two cases and imposed consecutive terms, the court should have included in the abstract of judgment the 440 days of presentence custody credits from the 2011 case No. MCR038615. (See People v Phoenix (2014) 231 Cal.App.4th 1119, 1126.)
The parties also agree the trial court should have awarded postsentence custody credits for time he spent in custody in case No. MCR038615 from his August 1, 2011 sentencing in that case to his March 24, 2017 sentencing in the consolidated cases. (Cal. Rules of Court, rule 4.452; see People v. Buckhalter (2001) 26 Cal.4th 20, 37; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.) These credits should be reflected in the abstract of judgment for the consolidated cases. (People v. Saibu, supra, at p. 1012.)
DISPOSITION
The matter is remanded for calculation of defendant’s postsentence custody credits in case No. MCR038615 for time defendant spent in custody between sentencing in that case on August 1, 2011, and sentencing in the consolidated cases on March 24, 2017.
The trial court is directed to modify the abstract of judgment to reflect (1) the 440 days of presentence custody credits in case No. MCR038615 for time defendant spent in custody before sentencing in that case on August 1, 2011, and (2) the above-noted postsentence custody credits in case No. MCR038615 for time defendant spent in custody between sentencing in that case on August 1, 2011, and sentencing in the consolidated cases on March 24, 2017. The court is directed to prepare an amended abstract of judgment and forward certified copies to the appropriate entities.
In all other respects, the judgment is affirmed.
* Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
