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People v. Canela

California Court of Appeals, First District, Fifth Division

April 2, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
JESUS CANELA, Defendant and Appellant.

THE COURT:

It is ordered that the opinion filed herein on March 11, 2014, 224 Cal App.4th 703, __ Cal.Rptr.3d __ be modified as follows and the petition for rehearing is DENIED:

1. On page 21, part V [224 Cal.App.4th 711, advance report, in the unpublished portion of the opinion], delete the entire paragraph, beginning “When the court” and insert the following paragraphs:

When the court sentenced appellant, it gave him credit for 956 days of presentence credit, comprised of 831 custody credits and 125 conduct credits. Appellant’s final claim is he is entitled to two additional days of custody credit (833 days) and one less day of conduct credit (124 days) for a total of 957 days (§§ 2900.5, subd. (a), 2933.1, subd. (c), 667.5, subd. (c)). Appellant is correct.

Appellant was arrested on May 8, 2010, and sentenced on August 17, 2012. The date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124 [14 Cal.Rptr.2d 692]) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526 [259 Cal.Rptr. 515]) must be included in the calculation of presentence custody. Calculated from his arrest until the date of sentencing, appellant’s period of actual presentence custody totals 833 days, not the 831 days the trial court awarded. His presentence conduct credits, calculated at 15 percent of 833, are 124 days. (People v. Ramos (1996) 50 Cal.App.4th 810, 815-817 [58 Cal.Rptr.2d 24].) Accordingly, the abstract of judgment for appellant must be corrected to reflect a total of 957 total days of presentence custody credits, consisting of 833 days of actual custody plus 124 days of conduct credits pursuant to section 2933.1.

2. On page 21 [224 Cal.App.4th 711, advance report, 1st full par.], delete the first sentence under the heading DISPOSITION, beginning “The judgment is” and insert the following sentence:

The judgment is modified to: (1) impose a theft fine of $10 (Pen. Code, § 1202.5, subd. (a)) and penalty assessments on that fine in the amount of $26;

Page 1104b

and (2) award appellant 957 days of presentence custody credits, consisting of 833 days of actual custody plus 124 days of conduct credits pursuant to Penal Code section 2933.1.

This modification changes the judgment.

The petition for rehearing is denied.


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