People v. CLAVEL

Opinion

KLINE, P. J.

Respondent moves this court for an order dismissing the appeal filed by appellant Salvador Clavel on the ground that the appeal asserts a miscalculation of presentence custody credits and appellant failed to first pursue his remedy in the trial court, as required by Penal Code section 1237.1.

1

Because we find that appellant failed to properly move the trial court for the requested relief before filing this appeal, we shall dismiss the appeal.

Background

A jury found appellant guilty of attempted murder, forcible rape, forcible sodomy, first degree robbery, first degree burglary, assault, elder abuse, and witness intimidation by force. The jury further found that appellant inflicted great bodily injury on the victim with respect to the forcible rape, forcible sodomy, assault, and elder abuse counts. The jury also found that that appellant committed burglary with intent to commit rape with respect to the forcible rape and forcible sodomy counts. On November 26, 2001, on

[518]

remand after an appeal, the trial court sentenced appellant to prison for a determinate term of 26 years and four months, and an indeterminate term of 30 years to life. Appellant filed a notice of appeal on December 4, 2001.

Discussion

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.” (See also

People v. Fares

(1993) 16 Cal.App.4th 954, 958 [20 Cal.Rptr.2d 314].)

The sole issue raised by appellant on appeal is whether, as appellant claims, the trial court miscalculated his presentence custody and conduct credits.