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The People v. James Ray Wilkerson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


July 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES RAY WILKERSON, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F07380)

The opinion of the court was delivered by: Mauro, J.

P. v. Wilkerson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant James Ray Wilkerson contends on appeal that the trial court should have calculated the amount of his presentence conduct credit at the time of sentencing. The People agree. We will remand this case to the trial court for calculation of defendant's presentence conduct credit.

BACKGROUND

Given the narrow procedural issue on appeal, we provide a very brief summary of the background. Defendant entered a negotiated plea of no contest to use of force resulting in serious bodily injury (Pen. Code, § 243, subd. (d))*fn1 and possession of a controlled substance (Health and Saf. Code, § 11350). He also admitted a prior strike conviction for assault with a firearm (§§ 245, subd. (a)(2), 667, subd. (a), 1192.7, subd. (c)) and three prior prison terms. The trial court sentenced defendant to 10 years 4 months in prison, imposed various fines and fees, and awarded 301 days of actual custody credit, but the trial court did not determine defendant's presentence conduct credit.

DISCUSSION

Defendant is entitled to credit against his prison term for the actual days of presentence confinement attributable to the conduct for which he was sentenced. (People v. Buckhalter (2001) 26 Cal.4th 20, 30; see People v. Duff (2010) 50 Cal.4th 787, 793; § 2900.5.) He may also be entitled to separate conduct credit. (People v. Duff, supra, 50 Cal.4th at p. 793; see also §§ 2933, 2933.1, 4019.)

Custody and conduct credit is calculated by the court at the time of sentencing and, in effect, becomes part of the sentence. (People v. Duff, supra, 50 Cal.4th at p. 793.) When a trial court imposes a sentence, it must calculate the exact number of days the defendant has been in custody prior to sentencing, determine the applicable credit, and reflect the credit in the abstract of judgment. (People v. Buckhalter, supra, 26 Cal.4th at p. 30; § 2900.5, subds. (a), (d).)

Defendant is entitled to have his presentence conduct credit determined by the trial court in this case.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded to the trial court for calculation of defendant's presentence conduct credit. The trial court shall prepare an amended abstract of judgment reflecting defendant's conduct credit and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

We concur: HULL, Acting P. J. ROBIE, J.


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