People v. Smith

[525]

Opinion

MARLER, J.

Charged with possession of cocaine for sale (Health & Saf. Code, § 11351.5) and a prior conviction for a drug related offense (Health & Saf. Code, § 11370.2), defendant was found guilty by a jury of the possession offense and admitted the prior conviction. He was sentenced to the middle term of four years for the possession and a consecutive term of three years for the prior conviction enhancement. In addition, defendant’s probation on the prior offense was revoked and he received a concurrent four-year term. He appeals claiming violation of double jeopardy as to the prior conviction enhancement and denial of one day of presentence credit. We modify the judgment and affirm.

Facts Pertinent to Part I

*

Facts Pertinent to Parts II and III

At sentencing, defendant was given 315 days of presentence credit on the term for the current offense. He received credit for the day of arrest but not the day of sentencing. On the concurrent term for the prior conviction, defendant received presentence credit for seven months spent in county jail as a condition of probation.

Discussion

I.

*

II.

Defendant next contends the court erred in not giving presentence credit for the day of sentencing. He received credit from the day of arrest, September 14, 1987, up to but not including the day of sentencing, April 11, 1988, for a total of 210 days. In addition, he received 105 days of conduct credit. The People concede entitlement to presentence credit for the day of sentencing.

[526]

“In all felony and misdemeanor convictions, . . . when the defendant has been in custody, ... all days of custody of the defendant . . . shall be credited upon his term of imprisonment, . . .” (Pen. Code, § 2900.5, subd. (a); further statutory references are to the Penal Code.) The sentencing court is obligated to “determine the date or dates of any admission to and release from custody prior to sentencing, and the total number of days to be credited pursuant to the provisions of this section.” (§ 2900.5, subd. (d).)