APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. (Super. Ct. No. MF009085A)
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In the published portion of this opinion, we hold Penal Code section 1237.1 does not preclude a defendant from raising, as the sole issue on an appeal, a claim his or her presentence custody credits were calculated pursuant to the wrong version of the applicable statute.
On July 8, 2010, an information was filed in Kern County Superior
Court, charging defendant Fernando Delgado with various offenses
arising out of a domestic violence incident that occurred between
February 28 and March 1, 2010.*fn2 On November 4,
2010, defendant entered into a plea agreement pursuant to which he
pleaded no contest to willfully inflicting corporal injury resulting
in a traumatic condition on a former spouse (Pen. Code,*fn3
§ 273.5, subd. (a); count 2), making criminal threats (§
422; count 3), and false imprisonment (§ 236; count 4), and agreed to
imposition of a term of five years four months in prison. In return,
the remaining count and enhancement allegations were dismissed upon
the People's motion.
After failing to appear on the date originally set for sentencing, defendant was sentenced, on July 22, 2011, to a total term of five years four months in prison. He was ordered to pay restitution and various fees, fines, and assessments. He was awarded 201 days of actual credit, plus 100 days of conduct credit, for a total of 301 days. The court found he was not eligible for halftime credits pursuant to section 2933, former subdivision (e)(3).
Defendant now says he is entitled, pursuant to the equal protection clauses of the federal and state Constitutions, to additional custody credits under the amendment to section 4019 that became operative on October 1, 2011. The Attorney General argues the appeal should be dismissed pursuant to section 1237.1. We reject both arguments.
SECTION 1237.1 DOES NOT REQUIRE DISMISSAL OF THE APPEAL.
"There is no constitutional right of appeal from a judgment or order in criminal cases; rather the right of appeal is statutory. [Citations.]" (People v. Connor (2004) 115 Cal.App.4th 669, 677.) Section 1237, subdivision (a) permits a defendant to appeal "[f]rom a final judgment of conviction except as provided in Section 1237.1 ...." Section 1237.1 provides: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." The statute "does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal when other issues are litigated on appeal"; if there are no other issues, however, "the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal." (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, fn. omitted (Acosta).)
The Attorney General says defendant's appeal must be dismissed, because defendant failed to file the requisite motion in the trial court and the sole issue raised on appeal is whether he is entitled to recalculation of his custody credits pursuant to the amended version of section 4019. Defendant says section 1237.1 does not apply, because the issue on appeal is not whether custody credits were miscalculated, but under which version of section 4019 those credits should have been calculated. Defendant has the better argument.
"The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Flores (2003) 30 Cal.4th 1059, 1063.) "Using these extrinsic aids, we 'select the construction that comports most closely with the apparent intent ...