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The People v. Benny Thomas

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


September 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BENNY THOMAS, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF050694)

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

P. v. Thomas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Benny Thomas contends that, although the trial court granted his informal letter request to award additional custody credits and strike an improperly imposed court facilities fee, it has failed to prepare an amended abstract of judgment to reflect these modifications. Defendant now asks that we order the trial court to amend the abstract of judgment to reflect an amended award of custody credits and the stricken fee. We agree and shall order the court to prepare an amended abstract of judgment.

After sentencing, defendant filed a Fares*fn1 letter with the trial court asking the court to correct the abstract of judgment to: (1) add 10 days' additional custody credits to which he is entitled; and (2) strike a $30 court facilities fee imposed pursuant to Government Code section 70373 as unauthorized because the statute was enacted after defendant's conviction.

The probation department responded in writing that defendant's "letter is correct. The defendant is entitled to an additional 10 days (total) credit and the order for the court construction fee should be stricken. An updated credit calculation is attached . . . ."

The trial court signed the following order at the bottom of the probation department memorandum: "I have read and considered the aforementioned report. Presentence custody credits are hereby ordered as outlined on the attached sheet." Despite an additional request by defendant, however, the trial court has not amended the abstract of judgment.

Defendant contends, and the People concede, that the sentencing court has the obligation to determine the number of days of custody and (if applicable) conduct credits, and to enter the credits on the abstract of judgment. (Pen. Code, §§ 2900.5, 1213; People v. Buckhalter (2001) 26 Cal.4th 20, 30.) We agree. Moreover, when a sentence is modified while in progress, "the sentencing court must determine such time and reflect it in the abstract of judgment." (People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.) The trial court has not amended the abstract of judgment after approving defendant's request for recalculation of his custody credits and an additional award. We shall direct that it do so. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 187-188.)

The parties disagree on whether the trial court's order effectively granted defendant's request to strike the $30 Government Code section 70373 court facilities fee. But they do agree that the fee was improperly imposed and must be stricken, as do we. The statute applies only to convictions which occurred after the enactment of the statute (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5) and defendant was convicted in 2006, long before section 70373's effective date of January 1, 2009. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413.)

Although the record is ambiguous, we generally presume the trial court properly followed the law (People v. Diaz (1992) 3 Cal.4th 495, 567) and therefore presume the trial court acceded to defendant's request that it strike the improperly imposed court facilities fee.

DISPOSITION

The trial court is ordered to amend the abstract of judgment to reflect the actual credit for all the time served, and to strike the $30 court facilities fee imposed pursuant to Government Code section 70373. The court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. We affirm the judgment in all other respects.

We concur: RAYE , P. J. DUARTE , J.


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